Skip to content
Law Society of Scotland
Search
Find a Solicitor
Contact us
About us
Sign in
Search
Find a Solicitor
Contact us
About us
Sign in
  • For members

    • For members

    • CPD & Training

    • Membership and fees

    • Rules and guidance

    • Regulation and compliance

    • Journal

    • Business support

    • Career growth

    • Member benefits

    • Professional support

    • Lawscot Wellbeing

    • Lawscot Sustainability

  • News and events

    • News and events

    • Law Society news

    • Blogs & opinions

    • CPD & Training

    • Events

  • Qualifying and education

    • Qualifying and education

    • Qualifying as a Scottish solicitor

    • Career support and advice

    • Our work with schools

    • Lawscot Foundation

    • Funding your education

    • Social mobility

  • Research and policy

    • Research and policy

    • Research

    • Influencing the law and policy

    • Equality and diversity

    • Our international work

    • Legal Services Review

    • Meet the Policy team

  • For the public

    • For the public

    • What solicitors can do for you

    • Making a complaint

    • Client protection

    • Find a Solicitor

    • Frequently asked questions

    • Your Scottish solicitor

  • About us

    • About us

    • Contact us

    • Who we are

    • Our strategy, reports and plans

    • Help and advice

    • Our standards

    • Work with us

    • Our logo and branding

    • Equality and diversity

  1. Home
  2. For members
  3. Journal Archive
  4. Issues
  5. August 2021
  6. Pensions: Plugging the LGPS exit credit hole

Pensions: Plugging the LGPS exit credit hole

The English High Court has held retrospective amendments to the Local Government Pension Scheme Regulations lawful on public interest grounds, to prevent windfalls for outsourcing contractors
10th August 2021 | June Crombie

In R (Enterprise Managed Service Ltd) v Secretary of State for Housing, Communities and Local Government [2021] EWHC 1436 (Admin) (27 May 2021), the claimant sought judicial review relating to the Local Government Pension Scheme (Amendment) Regulations 2020 (SI 2020/179).

The claimant had negotiated an outsourcing contract with a local authority for the provision of services and had become an admission body in the Local Government Pension Scheme (“LGPS”) in order to meet requirements to give contract employees access to that pension scheme. It challenged the lawfulness of reg 1 of the 2020 Regulations, which gave retroactive effect to amendments to the Local Government Pension Scheme Regulations 2013 (SI 2013/2356) (“LGPS Regulations”).

Under the LGPS Regulations, with effect from 14 May 2018, at the end of an outsourcing contract under reg 64, one result of the actuarial valuation then completed could be a surplus position; an exit credit payment would then have to be made to the exiting admission body. This was the case even if at the time the contract was negotiated the LGPS Regulations did not contain any provision to make exit credit payments and the local authority took all or some of the pension risk by bearing all of the costs and the risk in relation to the contractor’s liabilities to the pension fund through the life of the contract (commonly known as pass-through arrangements) – so any exit credit payment would be a windfall to the contractor.

This was later recognised as an oversight, and provisions allowing for certain factors to be taken into account when assessing whether there is an exit credit, and the amount of any exit credit (which could be zero), were introduced on 20 March 2020, but with retrospective effect to 14 May 2018. This meant that any exit credits that would have been payable between 14 May 2018 and 20 March 2020 but had been withheld and not paid, might not be payable.

Justified extinction

When the claimant’s contract expired in June 2018, a surplus of £6,518,000 was identified, but was not paid out by the LGPS administering authority.

The claimant alleged that its rights under article 6 of the European Convention on Human Rights had been breached by the retrospective extinction of the claim it had raised for payment.

Noting that a key question was whether there was a sufficiently compelling public interest in making the 2020 Regulations retrospective, thus preventing payment not only of exit credits which were anticipated but also of those which had actually fallen due but had not been paid, the court held that the defendant was justified in correcting its own policy error with retroactive effect for a number of reasons, including:

  • Exit credit payments can, at least in some cases, be fairly characterised as a windfall where parties made their economic bargain on the basis of pension risk which they knew about, but without any adjustment for the possibility of exit credits (which did not exist at the time this contract was entered into), or where the surplus would or could arise from the performance of a fund which, though notionally associated with the admission body at the point of admission to the LGPS, did not come from that body in the first place.
  • The effect of paying exit credits which had already fallen due when the 2020 Regulations came into force would be to diminish the ability of the LGPS funds to provide pension benefits, creating a real risk of future deficits which ultimately would fall on taxpayers.
  • The benefit of the windfall would be for commercial companies.

Scottish comparisons

The position in Scotland is not the same. The possibility of exit credit payments was also introduced in 2018, but there are no such amending regulations to restrict exit credit payments. This position was raised by the claimant as part of its argument on article 6. However, Bourne J indicated that the claimant could not “rely on the absence of any equivalent to the 2020 Regulations in Scotland for the inference that the regulations have no compelling justification”.

He preferred the contention by counsel for the defendant that in Scotland, “similar concerns have not arisen, there being a significantly lower level of outsourcing of services by local authorities”.

This does however mean that in Scotland, aspects identified and intended to be resolved by the 2020 Regulations in England, and confirmed by the outcome of the judicial review in the Enterprise case, remain potential challenges and issues for local authorities and contractors in relation to outsourcing contracts in Scotland.

The Author

June Crombie, head of Pensions Scotland, DWF LLP

Share this article
Add To Favorites
https://lawware.co.uk/

Regulars

  • People on the move: August 2021
  • Book reviews: August 2021
  • Reading for pleasure: August 2021

Perspectives

  • President's column: August 2021
  • Editorial: Defence questions
  • Profile: Keith Hamilton

Features

  • The cost of bad advice
  • Licensing the great outdoors
  • In care, in family?
  • Executor removal: a high bar
  • Time to push for family ADR
  • Some are less equal
  • Body donation: practice points

Briefings

  • Criminal court: Sentencing deconstructed
  • Family: Litigation and lottery wins
  • Human rights: Reinforcing the right to be forgotten
  • Pensions: Plugging the LGPS exit credit hole
  • Criminal law: The future of sexual offence trials
  • Scottish Solicitors' Discipline Tribunal
  • Property: Heat networks: the key to low-carbon heating?
  • In-house: Power of the nudge

In practice

  • SLAB not liable for interest – but should be: SAC
  • The Scottish Legal Walks are back!
  • Risk management post-COVID-19
  • Civil court hearings: seeking common ground
  • The Word of Gold: Scratch my back?
  • The Eternal Optimist: Living up to the name
  • Ask Ash: Groundhog day again?

Online exclusive

  • Competition and consumer law: time for a shakeup
  • SSSC hearings: why the move to opt-in
  • Liquidated damages and the effect of termination
  • State aid in the post-Brexit age

In this issue

  • Opinion: Andrew Stevenson
  • The pros & cons of outsourced cashroom services
  • The Cloud: let’s keep IT simple
  • Sign up for Remember A Charity will campaign week

Recent Issues

Dec 2023
Nov 2023
Oct 2023
Sept 2023
Search the archive

Additional

Law Society of Scotland
Atria One, 144 Morrison Street
Edinburgh
EH3 8EX
If you’re looking for a solicitor, visit FindaSolicitor.scot
T: +44(0) 131 226 7411
E: lawscot@lawscot.org.uk
About us
  • Contact us
  • Who we are
  • Strategy reports plans
  • Help and advice
  • Our standards
  • Work with us
Useful links
  • Find a Solicitor
  • Sign in
  • CPD & Training
  • Rules and guidance
  • Website terms and conditions
Law Society of Scotland | © 2025
Made by Gecko Agency Limited