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State Pension Regulations 2015

Volume 758: debated on Thursday 22 January 2015

Motion to Consider

Moved by

That the Grand Committee do consider the State Pension Regulations 2015.

Relevant document: 16th Report from the Joint Committee on Statutory Instruments

My Lords, this is the first set of new state pension regulations to be made under the Pensions Act 2014; further secondary legislation will follow over the next 12 months in the run-up to the introduction of the new state pension in April of next year. These draft regulations are largely technical and in many respects replicate the regulations governing the current scheme, although the legal language has been updated where appropriate. However, I should flag up at the outset two provisions governing the new scheme that differ from the current scheme and will be important for people in their planning for retirement.

First, Regulation 10 sets the accrual rate for increments—also known as extra state pension, paid where a person defers claiming their state pension—at the equivalent of around 5.8% per annum. The Government announced their proposal for the deferral rate on 22 July last year. The rate, which is based on advice from the Government Actuary’s Department published at the same time, is slightly higher than the rate of 5.2% assumed in the original estimates.

The rationale for moving from the current accrual rate of 10.4% per annum—set around 20 years ago but not introduced until a decade later—is to ensure that people get an actuarially fair return but not a bonus if they delay claiming their state pension. This is necessary to ensure that the costs of the new scheme do not exceed those of the current scheme. However, there may be other advantages in deferring claiming, such as in relation to tax. Typically this will be where a person continues in work beyond pension age and is a higher rate taxpayer, which means that if they draw their state pension it would also be taxed at the higher rate or alternatively that the higher rate of pension might send them into the higher rate tax band. If, on retirement, they are no longer a higher rate taxpayer, their state pension—including the increments on it for having deferred claiming—would be taxed only at the standard rate. That may be one reason why people would wish to defer.

The second factor to draw noble Lords’ attention to is Regulation 13. This sets the minimum qualifying period for entitlement to the new state pension. As announced on 13 December 2013, the minimum number of qualifying years of paid or credited contributions required will be 10. This is the maximum permissible under the enabling powers in Sections 2 and 4 of the 2014 Act. Setting this minimum qualifying period at 10 years is intended to ensure that entitlement to the new state pension is restricted to those who have a strong connection with and have made a significant contribution to the United Kingdom.

This approach is consistent with that adopted in many other European and OECD countries. Indeed, we in the United Kingdom adopted such an approach to the current basic state pension until 2010. A person needed then to have qualified for at least a quarter of the full basic state pension for any state pension to be payable. This 25% de minimis condition was perceived as having a disproportionately adverse effect on women in the United Kingdom—particularly ethnic minority women—who faced barriers in working outside the home. While this was undoubtedly the case historically, by the time the condition was lifted in 2010, under the changes brought about in the Pensions Act 2007, relaxation of the contribution conditions and improvements in the crediting arrangements, particularly for time spent raising children, meant that very few women in the United Kingdom would have failed the condition even in 2010, had it been retained. In effect, the change addressed a historical problem which, in reality, did not largely apply to the cohorts affected by the change.

Although not explicit in the draft regulation, I should point out that under the European legislation governing the co-ordination of social security systems, insurance or in some instances residence in another EEA member state will count towards the 10-year minimum qualification period but not the entitlement. In other words, it would affect a person qualifying but not count towards the amount they were paid by the UK authorities. I will try to give an example later on that might make that clearer. The same would also apply where people have been insured in a country with which the UK has a bilateral agreement—such as the USA or Israel—that allows for co-ordination of the two countries’ schemes in this way. It is not in my speaking notes but I will try to explain that. If a person has five years’ qualification in the United Kingdom and five or more years’ qualification in Europe, that would enable them to qualify but the pension they would be paid would be based on only the five years they were in the United Kingdom. I hope that that is helpful.

Turning to the remainder of the provisions, Regulation 1 is technical but importantly specifies that the regulations come into force on 6 April 2016—of course, we know that that is the operative date—alongside the state pension provisions in Part 1 of the Pensions Act 2014. It also ensures that the regulations reflect the Act by restricting the new state pension to people who reach pensionable age on or after that date.

Regulations 2 and 3 deal with prisoners under the power at Section 19 of the 2014 Act. These provisions will, thankfully, have only limited application but it is worth noting that the number of older people serving prison sentences has been on the rise over the past decade. Since 2002, the number of prisoners aged 60 and over in England and Wales has increased from around 1,500 to close to 4,000.

In essence, Regulation 2 provides that a person is disqualified from receiving the state pension if they are in prison as a result of a criminal offence or are serving part or all of a prison sentence in hospital—typically a secure psychiatric hospital. The basic principle that a person should be barred from drawing their pension while in prison dates back over a century and is based on the premise that to pay the pension would constitute double provision by the state as the person’s “bed and board” is being provided and could therefore be construed as rewarding criminal activity.

The disqualification under the regulations also applies where a person is serving a prison sentence overseas but with the caveat that it does not apply if, in similar circumstances, the person would not have been imprisoned here in the United Kingdom.

The new regulation is more explicit than the current provisions in one respect in that it clarifies that a person continues to be barred from receipt of their pension if they are “unlawfully at large”—a splendidly Dickensian phrase. This is common sense. It would simply be absurd to put a pension into payment—in effect as a reward—if a person managed to escape from his prison or psychiatric unit where they were effectively a prisoner.

Regulation 3 covers the position of persons being held on remand in connection with a criminal charge. The principle here is relatively straightforward and has been applied for many years. Payment of the pension will be suspended while the person is being held on remand. If at the conclusion of court proceedings a prison sentence, including a suspended sentence, is imposed, payment of the pension is barred for the period during which the person was held on remand.

If a sentence of imprisonment is not imposed—typically where the person is found not guilty, but also if the court were to impose a fine—the suspension is lifted and arrears of pension paid for the period the person was held on remand. As I said, this is a common-sense approach because periods spent on remand prior to sentencing will normally count as time served when it comes to a person’s release from prison.

Regulations 4 to 11 deal with deferral of the state pension. In addition to Regulation 10, which I mentioned at the outset, these set out the detailed terms and conditions that underpin, first, inheritance of deferral benefits built up by a person who deferred their old state pension—that is, the state pension that is currently payable until 6 April next year—and, secondly, deferral of the new state pension.

Regulations 4 to 6 deal with the former—inheritance of old scheme deferral benefits—under the powers at Section 8 of the Pensions Act 2014. In the same way as the new state pension will not be inheritable, any increase from deferring the new state pension will not be inheritable either. However, deferral inheritance will continue to be available where the late spouse or civil partner had deferred an old state pension. The rationale for retaining inheritance rights here is that in these circumstances the availability of such rights may have been a key factor in a person’s original decision to defer their pension, particularly where their spouse or partner is, or was, significantly younger than them.

These provisions basically replicate the current provisions governing when and how a survivor can choose a lump sum payment instead of increments, and how and when such a choice can be changed. That is in respect of the old state pension. This will ensure parity of treatment of survivors of people who deferred under the old arrangements, regardless of whether the survivor is covered by the old or new schemes.

Regulations 7 to 9 are made under the power at Section 16 of the Act and cover arrangements for people who, having initially claimed their pension, subsequently decide to “suspend” their entitlement—and thus, in effect, revoke their claim—in order to build up an increase under the deferral arrangements. Although the language has been modernised—the current regulations predate the removal of the retirement condition in 1989 and so are still couched in terms of an “election to be treated as not having retired”—the requirements and restrictions imposed by these regulations mirror those applied under the current scheme. Basically they are that entitlement can be suspended only prospectively, but not more than 28 days in advance, and must be done in writing or by phone; and that the suspension is lifted from the point when a person makes a further claim to state pension, which may be backdated for up to 12 months.

Regulations 11 and 12 are made under the powers in Section 18 of the Act and deal with periods during which increments or extra pension do not accrue and the treatment of part-weeks in the calculation. The provisions in Regulation 11 largely mirror those that apply under the current arrangements by preventing a person from being able to accrue a pension increase while they are drawing another payment out of public funds, such as pension credit—clearly, that would be unfair. Regulation 11 prevents duplication of provision by precluding increments from accruing for any period during which a person who, although not claiming their state pension, is receiving another benefit out of public funds that would be abated or not available to them if they were drawing their state pension. The provision also applies where another person is receiving an increase of a publicly funded benefit in respect of the person who is deferring their state pension. Regulation 12 simply provides that, when the total number of weeks for which a person’s state pension has been deferred is totted up to calculate the value of the increments, any odd days are counted as a full week.

Regulation 14 and the schedule deal with the sharing of state pension rights on divorce. Currently, additional state pension can be included in the assets that are considered for sharing in divorce proceedings. From April 2016, only the protected payment—that is, an amount above the full rate—will be shareable.

The department is in effect the servant of the court and supplies information about the value of the individual’s state pension. It also implements orders from the court. The regulation and schedules introduce the concept of old and new pension-sharing arrangements to assist the courts and the department in administering pension sharing. I commend the regulations to the Grand Committee.

My Lords, I will address my remarks, if I may, to Part 4 of the regulations—that is, Regulation 13. As I understand it, the regulations effectively replace what is called the home responsibility protection with a 10-year minimum qualifying period for a UK state pension. Prior to 2010, we had in the UK both the HRP and a 10-year minimum qualifying period. From 2010 until now, we had the HRP only. That is now being replaced by the 10-year minimum qualifying period, which was the position before 2010.

I refer to the Explanatory Memorandum and, in particular, paragraph 7.21, which, without the benefit of an impact assessment, is one of the major ways of discovering how many people will be affected by the shift that is announced in the regulations. This is what worries me more than anything else. In the Explanatory Memorandum, the Government look at the difference between a seven-year and a 10-year minimum qualifying period. The number of affected individuals in the United Kingdom who reach retirement age between 2016 and 2020 is approximately 3,000—the figure for the seven-year qualifying period is 6,000 to 10,000, while that for the 10-year period is 9,000 to 12,000, so the average difference between the two is 2,500 to 3,000 people. However, the following sentence says:

“In comparison, we estimate that 18 to 23 per cent (6,000 to 10,000 people) of the total number of individuals living overseas reaching state pension age in the same period will not qualify for a state pension because of the 10 year MQP”.

Then there is an estimate of that saving the Exchequer £650 million by 2040. This figure, I presume, relates mainly to those people living in other countries who have made a contribution to a UK state pension through their national insurance contributions, but who have not reached 10 years of qualifying and do not live either in the EEA or in a country that has a bilateral arrangement with the UK—for example, contributors to a UK pension who live in Australia, Canada, New Zealand, South Africa and other places. That is presumably why this figure is so high.

In that four-year period from 2016 to 2020, somewhere between 18% and 23% of all those pensioners who are expecting to receive a UK state pension are now not going to receive one. I would be grateful if my noble friend could provide—in writing if he does not, as I suspect, have the information to hand—a breakdown of who will be affected, where those people are affected and what the average rate of payment into a UK state pension has been in terms of minimum qualifying periods. If in fact there is a greater number between seven and 10 years, would that figure of 18% to 23% of people affected fall dramatically, if there were a seven-year qualifying period? It would be interesting to know what the rates of contribution had been for those people.

There is of course a second issue, relating to those who live within one of the countries that have a bilateral arrangement with the United Kingdom. I presume that those who live in an EEA country would in fact be entitled, because of contributions made through that European Economic Area member state, to a pension of some sort from the country where those contributions had been made. I want to ask my noble friend whether that is correct. Has an assessment been made of what that pension would be in each of the European Economic Area countries? More specifically, for those countries where there is a bilateral arrangement—my noble friend mentioned Israel and the United States of America—would the contributions which would enable people to get their pensions if they did not reach the 10-year minimum qualifying period, providing they had made sufficient contributions in those countries, for example, entitle them also to some form of pension ability in those countries, given that we have a mixed and bilateral system? I wonder whether my noble friend would agree with me that now is perhaps the time to reconsider the arrangements that we have with other member states in the European Economic Area and with other countries, particularly those of the Commonwealth, where we perhaps need to revisit whether we have a consistent, safe and sane system.

My noble friend also referred to the assistance that will be given to people to understand the new changes. It is not in the regulations, obviously, but paragraph 9 of the Explanatory Memorandum refers to guidance. Could my noble friend tell me whether any guidance is given to those people in the country who are now seeking, part-way through their working life, to emigrate to Canada or Australia, for example, that their state pension rights will be affected by these regulations, and perhaps much more dramatically than they would have been in previous years? I understand that this is a very narrow area to consider, so I would be happy, if necessary, to have a detailed reply in writing, but I would like to see the breakdown of how this affects people who have been contributing to a UK pension in countries such as Canada, New Zealand, Australia and South Africa.

My Lords, I thank the Minister for his very helpful explanation of the regulations and the noble Lord, Lord German, for his contribution, too. Generally speaking, the regulations seem to broadly reflect the intention of the legislation, so I shall concentrate on only two or three points on which I would like some clarification, which mostly have already been raised by the Minister—although I confess that I was not planning on talking about prisoners, or his idea of people being “at large”. I completely agree that people should not be rewarded for this, but the Government’s argument for not giving them a pension is that the state is taking care of their bed and board—which, presumably, the state is not doing if they have absconded. However, I shall let him off on that point for now.

Regulation 10 sets the accrual rate for increments when someone defers claiming their state pension. The rate has now been set at 5.8% per year, which is slightly above what we were told in Committee. Have the Government had time to reflect further since the Bill became an Act about the reasons behind the decision to stop people being able to take a lump sum when they defer, instead of an enhanced ongoing pension? During the passage of the Bill through this House, my noble friend Lady Hollis of Heigham challenged the Government and said that doing this was removing the only opportunity for some future pensioners, particularly those of lesser means, to acquire a lump sum to use in retirement, which might be the last opportunity to fix some particular problem with the house or buy a car. She pushed the Government on that.

I understand—the Minister can correct me if I am wrong—that of the 1.2 million who defer their pensions, only 63,000 take the lump sum, which on average is worth about £14,000. Could the Minister remind us of the reasoning for this? I seem to recall at the time the Minister for Pensions Steve Webb said it was to “simplify the system”, but I do not think it is very hard to understand that you can have a lump sum or a higher weekly amount. So I do not find that reason hugely compelling. Furthermore, government policy on pensions has evolved a bit in recent times, and the idea that people who have been saving for their retirement should be allowed to take a lump sum rather than a weekly pension has become rather flavour of the month. For example, it is there in the Taxation of Pensions Act, whereby people who would have had to spend their retirement savings on an annuity in future may take it out and spend it on a Lamborghini—I believe that is the phrase—should they be so moved. Has the Minister had any second thoughts on that, in the light of changing government pension policy?

Secondly, Regulation 13 was raised by the noble Lord, Lord German. I shall not repeat all the questions that he asked, some of which I would have asked myself, but I will be very interested to hear the Minister’s answer. I am interested in the rationale—that the reason for doing this now is because of the profile of the people who would be affected not being the people one would have expected when the legislation was going through. The Explanatory Memorandum suggests that only 2% to 3% of the people affected would be living in Great Britain, versus 18% to 23% overseas, but the absolute numbers are broadly comparable. We are talking 9,000 to 12,000 in Great Britain and 6,000 to 10,000 overseas. The memorandum says:

“Current projections by the Department indicate that in the medium and long term, abolition of the de minimis condition would have disproportionately benefitted people living outside the UK”.

What is expected to be the short-term impact?

As the noble Lord, Lord German, said, the changes made by the last Labour Government in the Pensions Act 2007 are the context for this. It meant that people who reached state pension age on or after 6 April 2010 needed only 30 qualifying years to qualify for a full basic state pension—and, of course, the HRP, as the noble Lord, Lord German, said. With fewer than 30 years, they qualify for a BSP of one-30th of the full rate for each complete qualifying year that they have built up. That means that somebody reaching state pension age from 6 April 2010 who would not be entitled to any BSP would only be somebody who had built up not even one qualifying year. So it is quite a significant difference. The Labour Government estimated that to mean that, by 2025, over 90% of people reaching state pension age would be entitled to a full BSP. It is quite a big difference from that to someone with, say, nine qualifying years, who as I understand it would not receive anything at all. Labour tried in various ways during the passage of the Bill to soften the transitioning, which would have dealt with some of the issues, but the Government rejected it. Have the Government had any further thoughts on that?

On another point, that is only one of many reasons why someone might not find themselves entitled to a full new state pension, which has become a bit of an issue of late. I understand the desire for simplicity, but in trying to advocate for the single-tier pension, there is a danger that the Government have led many people to believe that they will all qualify for the new state pension, when, in fact, we now know—from freedom of information papers released after Christmas—that 55% of people will not be on the new flat-rate state pension. Obviously, this is partly down to the way the Government have presented this. In an unusual bout of politicians declaring their responsibility, I gather that the Pensions Minister Steve Webb told the Daily Telegraph:

“I think I may have been guilty of oversimplifying the new flat rate state pension”.

Could the Minister tell the Committee, given that that misapprehension is out there, for whatever reason, what steps the Government are taking to correct it? What kind of information campaign is going on to make sure that people who are approaching retirement within the next 10 years will have a better understanding of what they can reasonably expect to get?

I am just very conscious that we discussed all this in both Houses of Parliament during the passage of the Bill, and it attracted some, but only minority, interest in the media. Now that we are running up to the introduction of the new state pension, there is a huge amount of media interest, but that is very close, and too late for anyone to take any action. What are the Government doing to notify people?

Finally, I should like to ask the Minister for an update on the issue of mini-jobs, raised during the passage of the Bill. I hope he will give me enough licence to raise this. This is the issue of people who have more than one job, but with none of them individually taking them over the lower earnings limit for national insurance. Thus, no matter how many hours they work, they are not gaining any qualifying years towards the new state pension. What is the Government’s latest thinking on this?

I thank noble Lords who have participated in the debate on these regulations. I will try to cover the points raised; where I fail to do so, I certainly undertake to write to noble Lords. I turn first to the points made by the noble Lord, Lord German, on an issue that is, perhaps, somewhat tangential to the regulations themselves, but certainly an issue that I know the noble Lord feels strongly about, and is impacted by these regulations. Let me return to the basic point here, and answer some of the points raised by the noble Baroness, Lady Sherlock, as well.

The 10-year period signifies a close connection with the United Kingdom. I suppose there is nothing magic in a period: that is the period chosen, and, of course, we have to do this within the broad envelope of public spending. That is the basic rationale here. The question raised by the noble Lord, Lord German, concerned what happened to pensioners, or prospective pensioners in some cases, who were in countries such as South Africa, Canada, Australia and New Zealand, which did not have a bilateral arrangement with the United Kingdom and were clearly not in the EEA. It is fair to say that they are not able to build up the qualifying period in the same way as people within the United Kingdom and people in the EEA or countries with bilateral agreements with the United Kingdom, such as the USA and Israel, which I mentioned. That has been the position through successive Governments. This is nothing new in these regulations and nothing new with this Government: this has been built up over a period of time. This is not seen as a key priority at the moment, in relation to pensions reform. I do not know the number of people who will be affected or the breakdown of how many are in each country. I will write to both noble Lords with whatever statistics we have on this to elucidate that point. The fundamental point is, however, that 10 years has been picked as signifying a close connection with the UK. The EEA is in a particular position with regard to the co-ordination of pensions policy, so that is why that is affected.

In relation to the point raised by the noble Lord, Lord German, on guidance and communications, I will, again, seek to provide more information in writing. We have a communications campaign going on that will set out the broad principles: they are operational and will influence how the scheme operates. This was launched in November and aimed at broadening awareness and understanding of how the state pension is changing. This has been trialled: there are regional trials in the north-west and the north-east as a control to see how that is being perceived. There is also an online campaign with an offshoot of YouTube—PensionTube—for people to find out more information. We are seeking to communicate the changes being made to the system as things move forward.

Turning to the point made by the noble Baroness, Lady Sherlock, I can confirm that those unlawfully at large are not, so far as I am aware, getting food and lodging at the expense of the public purse. A different point applies there. That is the point in prison. If they escaped from prison, it would be a bit perverse to reward them for escaping from prison or a psychiatric unit by saying that they could have their pension. Presumably if we were in that position, we would know where they were and would recapture them, but that is the point.

The noble Baroness made a particular point about the lump sum or annuity where somebody has deferred and then seeks to crystallise the amount in a lump sum or annuity. The reason for dispensing with the lump sum payment arrangements was that the new deferral arrangements would help to flatten the expenditure profile and offset some of the costs of the early years over a period which, if there was an ability to take a lump sum, would expose us on the public spending front, as I understand it. The new state pension scheme—this may be hard to believe—is simpler, and the deferral arrangements reflect the change. Offering a choice of deferral payments has made the current system rather complex, and people are unsure what is best for them. That is basically the reason. The lump sum is seen as a somewhat inflexible savings vehicle. That is the reason that we have gone for the annuity option.

I will have to write to the noble Baroness on this point. I think I have seen this somewhere, but I had better be careful what I say. I think it is possible after 2016 to buy additional qualifying periods pre-2016. I am not sure whether that affects qualification or only the amount of the pension that could be drawn down. I think that is probably a point on which we need to get back to the noble Baroness. I will write on that point. I think at the very least I have seen something about it affecting the amount of the pension that you can draw down. You can certainly contribute post-2016. Whether you can use that for a qualifying year, I am not sure, but I will write to the noble Baroness on that point. There is a communications campaign.

The noble Baroness raised a number of points. The mini-jobs point was raised by the noble Baroness, Lady Hollis, in the Chamber. I am afraid I do not have the current state of play on that because it is somewhat wide of these regulations, but I will ensure that the noble Baroness gets a response on that point.

With regard to the fact that not everybody will be getting the full amount, the reason is that if those who have contracted out—and many have currently contracted out, although that ends in 2016—were to get the full amount, it would be double-counting. You would have the benefit of contracting out in the other pension and then you would get the full amount with the state pension. That would be unfair, so that is why. Nobody is worse off. There are provisions now to prevent that opting out counting. That is purely what this is. That number will decline over time because opting out is ending, but the figures that the noble Baroness cited are correct. Not all those getting the new pension will get the full amount because they are getting the benefit of the opt-out.

I hope I did not, because I am not sure that is the case. If I did, I certainly correct that point. I am not sure that nobody will be worse off. I could not say that.

When that story broke, as it were, this was not new news; it was old news and the BBC and perhaps others—I should not single the BBC out—were being lazy in reporting. We are clearly correcting that via the media. I think it has been corrected. The reason for this is to ensure that there is no double-counting. As I cannot be certain, I would not go so far as to say that nobody is worse off, but I think it would be perceived as fair by most fair-minded people that if you have opted out of the state system and the state has, as it were, contributed to a different pension, you should not be able to count that again for the benefit of the state pension. I think it is fair to say that most people are better off, but I would not like to put a particular figure on the amount.

If I have missed anything, I will certainly pick it up in writing to noble Lords who have contributed to this debate. I thank them once again for their helpful contributions and commend these regulations to the Grand Committee.

Motion agreed.