The Local Government (Discretionary Payments) (Injury Allowances) Regulations 2011 S.I. 2011/2954
This instrument revokes and replaces Part 5 (injury allowances etc) and regulation 45 (decisions and appeals) of the Local Government (Discretionary Payments) Regulations 1996 (S.I. 1996/1680) with a new discretionary injury allowance scheme for persons employed by a relevant Local Government Pension Scheme employer. This instrument also revokes the remaining parts of the 1996 Regulations not previously revoked, in particular Part 6 which concerns the payment of gratuities in respect of non-pensionable service.
The new injury allowance provisions bring into line the operational practice in other public service injury benefit/allowance schemes and other legislative changes specifically tax regime changes driven by equalities legislation.
The instrument also introduces a new internal appeals procedure adapted in line with the internal dispute resolution procedure (IDRP) already operated under the LGPS.
It is important to note that the injury allowance scheme is operated by employers rather than pension funds and runs independently from the LGPS although it does share some definitions and operational procedures. The instrument makes it clear that granting of an injury award is discretionary.
The main purpose of the new regulations is to provide relevant employers with the opportunity to award an employee an injury allowance where, in the course of carrying out his or her normal work, an employee, who is employed in a relevant employment, sustains either an injury or contracts a disease.
In accordance with regulation 14 of these regulations, all LGPS employers must formulate, publish and keep under review the policy that it applies in the exercise of its discretionary powers to make an award under these Regulations.
The main points of these new regulations are set out below:
LGPS employer means a Scheme employer, being a body mentioned in regulation 8 of, or listed in Schedule 2 to, the LGPS (Administration) Regulations 2008 (as amended).
Regulation 8 - Eligibility for membership of employees of other bodies not listed in Schedule 2
- A person may be an active member if he is an employee of the governing body of:
(a) a voluntary school (within the meaning of the School Standards and Framework Act 1998);
(b) a foundation school or foundation special school (within the meaning of that Act) maintained by a local education authority;
(c) any technical institute or similar institution which is for the time being assisted by a local education authority under the Education Act 1996; or
(d) a federated school (within the meaning of the Education Act 2002),
and the local education authority has, with the consent of his employer, designated him, or a class of employees to which he belongs, as being eligible for membership of the Scheme.
- Such a person shall be deemed to be in employment with the relevant local education authority and all references in these Regulations to employment by or under a Scheme employer and all similar expressions shall include references to that person.
Schedule 2 - Scheme Employers
- A county council, a unitary authority, a district council or a borough council;
- A fire and rescue authority;
- A probation trust;
- A further education corporation;
- A higher education corporation;
- A proprietor of an academy;
- A local housing authority;
- A body which is a precepting authority i.e. town and parish councils;
- A designated institution which immediately before designation was assisted or maintained by a local education authority.
Note: Admission bodies do not qualify under the The Local Government (Discretionary Payments) (Injury Allowances) Regulations 2011 and so cannot award injury allowances.
- Relevant employer means the employer by whom the person in question was employed immediately before the person qualifies for any allowance or lump sum paid under these regulations or if the person dies without qualifying for any such allowance or lump sum, the employer who last employed the person in a relevant employment before the person's death.
- An award can be granted where an employee suffers a reduction in remuneration as a direct result of sustaining an injury or contracting a disease whilst carrying out his or her normal work.
- An award can be granted where an employee loses employment through permanent incapacity as a direct result of sustaining an injury or contracting a disease whilst carrying out his or her normal work.
- Before determining whether or not an award should be granted, the relevant employer must obtain a certificate from an independent registered medical practitioner (IRMP), as to whether in his or her opinion the employee has sustained an injury or contracted a disease in the course of carrying out his or her work, continues to suffer from the injury or disease or as a result of the injury or disease, ceases to be employed as a result of a permanent incapacity caused by the injury or disease.
- Where the employee dies as a result of sustaining an injury or contracting a disease in the course of carrying out their normal work, an allowance or lump sum can be paid to a surviving spouse, civil partner, cohabiting partner or dependent as determined by the employer and in line with the definitions of these terms under the main LGPS regulations.
- The amount of any allowance or lump sum has to be determined by the relevant scheme employer having due regard to all the circumstances of the case.
- The cost of any payment to be made under these Regulations is not to be met out of any pension fund.
Other points of consideration:
- References to admission bodies have been removed from the injury benefit provisions as they are not Scheme employers as defined in Schedule 2 to the LGPS Administration Regulations;
- A provision has been introduced at the request of HMRC to ensure that National Insurance Contributions are deducted from any injury award paid in line with other public service injury benefit schemes;
- A provision has been introduced whereby an employee wishing to pursue either a temporary or permanent injury allowance will need to first have their injury or disease certified by their employer's independent registered medical practitioner (IRMP). This aligns the award of an injury allowance with the current procedure for ill health retirement as set out on the main LGPS regulations;
All relevant employers should avail themselves of a copy of these Regulations and take action to produce a policy statement.