Joint Committee on Statutory Instruments Tenth Report


Memorandum by the Department of the Environment, Transport and the Regions


  By a letter from its Clerk dated 23 July 1997 the Committee has requested the Department to submit a memorandum on the following points:

    (1)   Regulation 38 refers to a member's death grant which the payment under paragraph (1) must not exceed. Explain:
      (a)   what death grant covers; and

      (b)   why it is necessary to treat a payment under paragraph (1) as a payment made by way of death grant (paragraph (7)).

  (a) The drafting of this regulation is affected by the wish to avoid providing that any person becomes entitled to a death grant on a member's death. (Such an entitlement might have adverse inheritance tax consequences).

  Consequently, in paragraphs (2) to (6) the member's death grant is merely a notional concept representing a maximum amount, which must not be exceeded by the payments made under paragraph (1). (By virtue of section 6(c) of the Interpretation Act 1979, "person" in paragraph (1) may mean more that one person, and so there may be more than one payment made on a member's death).

  (b) Paragraph (7) is phrased as it is because of the way that the concept of the member's death grant is used in the earlier paragraphs. It is intended to make it clear that any amount paid under regulation 38(1) is paid by way of death grant and therefore that all the provisions drafted in terms of death grant apply. (See regulation 21(4), for example.) The question whether or not a payment is by way of death grant will be especially relevant in determining whether the limits for such grants which apply under Schedule 4 have been complied with.

    (2)   In regulation 71(6), explain the reference to "the sum received as mentioned in regulation 64".

  In regulation 71(6), the word "received" is part of the phrase "sum received" which refers to the sum the new authority has received by virtue of the transfer made to it under regulation 71(5). The words "as mentioned in regulation 64" qualify the earlier words "must apply and invest". The intention is that the investment and use provisions in regulation 64, which apply to the part of the AVCs not set aside for death benefits, should continue to apply to the transferred sum, just as they did before the transfer.

    (3)   In regulation 123, given that paragraph (1) allows the member to count the excess transferred-in service as a period which counts towards his total membership (for certain regulations), explain the purpose and effect of the proposition (in (3)) that that period counts as its actual length.

  We agree that the proposition in paragraph (3) of regulation 123 is not strictly legally necessary in view of the definition of transferred-in service in paragraph (6). But we think its inclusion helpful. First, it emphasises that the excess transferred-in service represents a period actually served, which contrasts with the entirely artificial concept of the credited period, which is calculated by reference to the amount transferred into the Scheme in accordance with regulation 122(2). Secondly, it avoids any argument that in the case of a part-timer the rule in regulation 11(3) should be applied.

    (4)   In regulation 133(11), explain the application of section 105 in relation to a magistrates' court committee with the omission of paragraph (3) of regulation 103.

  The reference should have been to the omission of the words "(otherwise than in the exercise of a discretion)" in paragraph (1)(a) of regulation 105 and not to the omission of paragraph (3) of regulation 103. The Department apologises for this and undertakes to make the appropriate amendment when the Regulations are next amended.

31st July 1997

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