Firefighter representatives and the Local Government Association have written jointly to the government raising the possibility of legal action if steps are not taken to compensate members affected by the remedy period resulting from the McCloud judgment.
The letter, submitted on April 4 by the LGA on behalf of Fire Rescue Authorities and the Fire Brigades Union, lamented the lack of a solution for members until the expected arrival of legislation in October 2023.
Members affected by the ruling, which found 2015 reforms to the judicial and firefighter pension schemes unlawful on the basis of age discrimination, are said to be those who have taken or are in receipt of benefits prior to the implementation of remedy legislation, which the campaigners said could see them “face an immediate detriment”.
The FBU sent the government a similar letter in November 2021 in a bid to stop the cost of the remedy falling on members.
The FBU legal team are drafting the very significant next round of legal claims which will be registered in the court shortly
Mark Rowe, Fire Brigades Union
Affected members are preparing legal action
The letter, which was addressed to the Home Office and the Treasury, referred to a framework that had been agreed in October 2021 that would have facilitated payments to FPS members with the aim of compensating for this detriment.
Signed by LGA senior pensions secretary Jo Donnelly and FBU general secretary Matt Wrack, it observed that since the agreement the Treasury has opposed alternative solutions to waiting for the final regulations in 2023.
“This has left FRAs in a position of uncertainty and affected scheme members are actively preparing legal action once again,” the letter stated.
It acknowledged difficulties in the making of some payments, particularly those associated with contributions until clarity had been reached over the relevant tax position.
The letter said claimants in any new proceedings would argue that they are entitled to damages “that place them in the same position, net of any tax, that they would have found themselves in if there had been no discriminatory treatment”.
“We do not, however, see any issues with the immediate payment of pension arrears or arrears of lump sum for those within 12 months of leaving and would be grateful for your support in making such payments, in particular, by confirming that such payments will be treated no differently from payments of pension outside of the scope of remedy with regard to funding,” it added.
“Your stance in respect of the position of members who receive payments prior to the implementation of the remedy legislation not being able to be regularised by remedy legislation is unhelpful.”
The letter suggested that existing legislation would allow for “more than adequate flexibility to ensure the regularisation of scheme members benefiting from a considered approach to immediate detriment cases”.
“We do not accept Treasury and Home Office delays in abiding by the decision of the court,” FBU national officer Mark Rowe said.
“There must be no further delays. The FBU legal team are drafting the very significant next round of legal claims which will be registered in the court shortly.”
The government has been contacted for comment.
FBU calls for relaxation of scheme re-entry rules
The FBU has also demanded that members be allowed to opt back into the Firefighters’ Pension Scheme following the passing of a key deadline at the start of April.
On March 25, the union received an email from the LGA urging members with an interest in returning to the scheme, in light of the remedy period, to take the necessary steps to opt back in on or before April 1.
It acknowledged the several firefighters that left the scheme instead of being transitioned into the Firefighters’ Pension Scheme 2015 when it was introduced.
The LGA noted the subsequent government recognition that these members may have acted differently had they known that membership of their legacy schemes had been available during the remedy period.
“Government therefore intends to legislate for decisions such as this through the contingent decision aspect of the retrospective legislation,” the LGA said.
“Although the final policy on this matter is yet to be determined, and we cannot provide any guarantees that a particular case will be deemed a contingent decision, we thought it would be prudent to bring the following to your attention so that action can be taken where required.”
The LGA said it believed that if a member remained opted out beyond April 1, they may under retrospective legislation be allowed to buy back their opt-out service that took place during the remedy period.
It added that it would be unlikely that regulations would allow them to buy back service after March 31.
This would mean that their pension will remain deferred with a payment age of 60 for members of the Firefighters’ Pension Scheme 1992 and age 65 for Firefighters’ Pension Scheme 2006, irrespective of whether they bought back the opt-out service during the remedy period.
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The LGA encouraged the FBU to share its message with members immediately, with the April 1 deadline for re-entry just days away.
The FBU published the LGA’s notice on the same day and said that it had raised concerns regarding “the extremely late notice”, with members on sick leave or annual leave potentially missing the reminder.
“It is the view of the union that any member who does not become aware of this information until after March 31 2022, must be allowed the option to opt in as detailed above and be treated as if they had opted in within the timescales detailed within the email,” Rowe said in the union’s notice.
