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The fee paid judicial pension scheme

The Judicial Pensions (Fee-Paid Judges) Regulations 2017 came into force on 1 April 2017, establishing the Fee Paid Judicial Pension Scheme (‘FPJPS’) for judges with eligible fee-paid service. The benefits provided by the FPJPS largely mirror the Judicial Pension Scheme (‘JPS’) for salaried judicial office holders established by the Judicial Pensions and Retirement Act 1993 (‘JUPRA’). The main provisions relating to eligibility and benefits of the FPJPS and how they compare to JUPRA are set out below.
a.    Eligibility (Regulation 8)
In order to be eligible for the scheme, an individual must have held fee-paid judicial office between 7 April 2000 and 31 March 2015.
If the office holder left office before 2 December 2012, i.e. before the MOJ’s moratorium applied, they must have presented a claim for less favourable treatment under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (otherwise known as an O’Brien claim) to an employment tribunal. The claim must have been presented in time, by virtue of having been presented within 3 months of leaving the fee-paid office to which the claim relates, or by having had the time limit extended.
At the time of writing, the judgment of the Supreme Court in Miller & Ors v MOJ is awaited. One of the issues being considered in that appeal is whether the time limit for these claims does in fact run from the date of leaving the relevant fee-paid office, or whether it should run from the date of retirement of the salaried full-time comparator, on the basis that it is only at the date of retirement that the salaried comparator actually receives their pension. If the Supreme Court finds that the time limit should run from the date of retirement, then a number of judges who:
1.were in fee-paid service  on or after 7 April 2000 and whose  service ended before 2 December 2012; and
2.did not lodge O’Brien claims within three months of that fee-paid service ending nor had their time limit for lodging a claim extended; and
3.moved to a salaried appointment or a new fee-paid appointment after their earlier fee-paid appointment ended and lodged an O’Brien claim within three months of that subsequent appointment ending or are still working in that subsequent appointment, may become eligible for a pension for that earlier period of fee-paid service.
b.    Retirement benefits
i)    Annual pension (Regulation 13)
The annual rate of pension of someone retiring at the age of 65 will usually be 1/40th of the annual salary of the appropriate judicial office multiplied by the reckonable service that the judicial office holder has completed prior to retirement. The provision under JUPRA is very similar – 1/40th of the judge’s pensionable pay multiplied by the aggregate length of service in qualifying judicial office. The annual rate of pension under the FPJPS will differ for those who retire early, either voluntarily or on ill-health grounds.
ii)    Lump sum (Regulation 25)
A lump sum equivalent to 2.25 times the annual rate of the pension is payable on retirement, as is the case for the JPS. 
iii)    Survivor’s pension (Regulations 36 and 37)
The FPJPS provides for a benefit to be paid to a surviving spouse or civil partner of a fee-paid judge who is a member of the scheme following the death of the judge. The annual rate to which a surviving adult becomes entitled is one half of the rate of the pension of the deceased member. This is the same as under JUPRA.
Children’s pensions are payable in respect of a child or children under the age of 16, or over 16 and in full-time education or undertaking certain types of training, at the time of the judicial office holder’s death (Regulation 42).
iv)    Death in service benefit (Regulation 45)
If a member of the scheme dies whilst holding judicial office, a lump sum is payable. 
c.    Other points to note
i)    Contributions
As with the JPS, personal contributions are payable for service from 1 April 2012 and survivor’s pension contributions are payable at a rate of 1.8% for service from 7 April 2000.
ii)    Tax status
The government confirmed in its consultation document dated 15 September 2016 that the FPJPS is non-registered for tax purposes, as is the case with the JPS. This means that benefits accrued within the scheme do not count towards the annual or lifetime allowances imposed on registered schemes by the Finance Act 2004.
iii)    Service from 1 April 2015
As part of the changes made to public sector pensions generally, changes were made to the JPS in April 2015 such that younger salaried judges born after 1 April 1957 who had previously been members of the JPS were required to leave the JPS from 1 April 2015 and were instead offered membership of the New Judicial Pension Scheme (‘the NJPS’).   These changes have been mirrored in the FPJPS, such that younger fee-paid judges (ie those born after 1 April 1957) are treated differently to older judges, in that younger fee-paid judges cannot accrue further pensionable service in the FPJPS after 31 March 2015, and, from 1 April 2015, can only accrue further pensionable service in the NJPS.  Older fee-paid judges can, however, continue to accrue service in the FPJPS after 31 March 2015.
We are currently acting for over 200 younger salaried judges who are bringing claims for direct age discrimination, equal pay and indirect race and sex discrimination in relation to the transitional provisions in the Judicial Pensions Regulations 2015 (‘JPR 2015’) which, as mentioned above, required them to leave the JPS as at 31 March 2015 purely because they were younger. The claims were upheld at first instance, however the MOJ is appealing the ruling.
We are currently advising a number of fee-paid judges who were born after 1 April 1957 on potential discrimination claims. If you are a salaried or a fee-paid judge and would like to discuss whether you might have a potential claim, please contact Sam Velody in the first instance on 0207 650 1107.

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