Firefighters’ Pension Scheme

Jane Hunt Excerpts

Monday 28th February 2022 Commons Chamber

[Jane Hunt (Loughborough) (Con)]

I begin by thanking all the firefighters, who, day in and day out, put themselves in harm’s way to protect the public. Last summer, ahead of Public Service Day, I had the pleasure of visiting Loughborough fire station to meet some of our fantastic local firefighters from Loughborough and Shepshed to hear more about their work and, importantly, to thank them for all that they do.

One such firefighter from Shepshed sadly died in 2016 while on duty at Castle Donington fire station. Paul Wilkens, at the time of his death, was enrolled in the legacy 1992 pension scheme and was in the process of being tapered on to the 2015 pension scheme. As the Minister will know, the new pension scheme was introduced as part of the then Government’s reforms to public service pensions, which would see pension benefits based on career average revalued earnings rather than final salary.

Crucially, the transitional provisions of the new scheme created three groups of members, determined by the age of the individual. The first group were active members of the legacy scheme born on or before 1 April 1967, who would remain in the scheme and receive full protection. The second group were active members of the legacy scheme born between 1 April 1967 and 2 April 1971, who would be entitled to tapered protection under the transitional provisions, allowing them to remain in the legacy scheme for an extra 53 days for each month by which their age on 1 April 2012 was over 41. The last group were active members of the legacy scheme born after 1 April 1971, who would receive no transitional protection but would be transferred to the new scheme from 1 April 2015. Mr Wilkens fell into the second category because he was born in 1969 and was due to be tapered into the new scheme in 2017, the year after his death.

As well as the change to pensions benefits based on career average, the new scheme introduced an important new provision concerning the surviving partner’s pension payable on death of an active member. Regulation 76(1) of the Firefighters’ Pension Scheme (England) Regulations 2014 states:

“For the purposes of these Regulations, a person is a surviving partner in relation to a member if, at the date of the member’s death, that person is—

(a) the spouse or civil partner of the member;

(b) cohabiting with the member and—

(i) is not married or in a civil partnership with that member, and

(ii) is not the spouse or civil partner of any other person, and

(iii) could enter into a marriage or civil partnership under the law of England and Wales with the member but has not done so,

(iv) is financially dependent on the scheme member, or is, with the scheme member, in a state of mutual financial dependency, and

(v) is in a long-term relationship with the scheme member.”

That differs significantly from the legacy scheme, the equality impact assessment for which dealt with marriage, civil partnership and other aspects of relationships, but not with those who were cohabitating in a heterosexual relationship.

This has had an adverse impact on Mr Wilkens’s partner, Melanie Perry, with whom at the time of his death he had been in a relationship for 10 years, for nine of which they had been cohabiting. They also owned their house and paid their mortgage and bills jointly. They had one child together, and the children from Melanie’s previous marriage lived with them, along with Mr Wilkens’s daughter from a previous marriage. Mr Wilkens loved and cared for all the children equally, both emotionally and financially. They were in every sense a family and a single household living in one property together.

After Mr Wilkens’s death, however, Melanie was informed by the pensions manager at Leicester, Leicestershire and Rutland Combined Fire Authority that although they had investigated their ability to award her the death grant, they were unable to do so because Melanie and Mr Wilkens were not married. As I have set out, had Mr Wilkens died just one year later after he had tapered into the new scheme, Melanie would have been eligible to succeed his pension. Had it not been for the decision to taper the transition to the scheme and Mr Wilkens’s date of birth, Melanie would therefore not have been in the difficult position that she is in now. It should also be noted that Leicester, Leicestershire and Rutland Combined Fire Authority was able to award all four of the children a fire service pension while they were in education because it was satisfied that they—even those from Melanie’s former marriage—met the criteria of “substantially dependent” on Mr Wilkens.

Melanie has been trying to rectify the situation since 2016, having initially approached my predecessor for assistance. As my predecessor’s caseworker, I attended a meeting with Leicestershire Fire and Rescue Service’s assistant chief, the pensions manager and two Fire Brigades Union officials to discuss the case. The combined fire authority and the then Fire Minister were also contacted in writing, but unfortunately no further progress was made at the time.

In May 2018, a further letter was sent to the pension trustees appealing for reconsideration. In their response, they were clear that they had no power to apply discretion to the case. That was reiterated in September last year in a response that I received from Leicestershire Fire and Rescue Service’s chief fire officer, who stated that

“it has never been a case of not wanting to resolve the situation...it has always been around the technical ability and then the legality of doing so. Sadly, the rules around the 1992 pension scheme are clear. They allow no discretion on the interpretation of the scheme by the scheme manager, the Combined Fire Authority or myself”.

A response that I received shortly before that from the Fire Minister stated:

“The responsibility for applying the rules of the 1992 Scheme and deciding an individual’s pension entitlement ultimately rests with each employing Fire and Rescue Authority, in this case Leicestershire Fire and Rescue Service. Notwithstanding this, each employer is required to comply with the scheme’s legislation and does not have discretion to pay benefits to an individual where there is no entitlement.”

I therefore ask the Minister that the fire and rescue authority be allowed to have discretion in this unique matter.

Understandably, Mr Wilkens’s death and Melanie’s subsequent efforts to rectify this pension issue have had a profoundly negative effect on her. In her own words,

“When I answered the door to a Firefighter on Tuesday 23rd August 2016 at approximately 10.30am and the words that came from his mouth were telling me that Paul had died at work on duty, my life, as I knew it also came to an end.

Nothing in my life has or ever will be as hard as living with the trauma and grief that follows the death of your life partner. Imagine living with a scream inside you and the scream is yours but no one else hears it—that is grief!

Not only have I had to learn to continue to live without Paul by my side, I’ve had four children to navigate through the minefield of grief that is forever on going. As they grow older and mature, their emotions and understanding of the finality of death is sometimes impossible to be able to help them to comprehend. It is just so devastatingly unfair.

Challenging the decisions made in relation to a survivors pension these past five years have taken so much of the time and energy that would have been far better placed supporting my children and myself in learning to live without Paul and without the financial provision that he would have expected us to receive. The pension changes were made to ensure that all firefighters were treated equally yet this is far from how we have been treated.

Paul devoted his life to serving for his country, as a Royal Engineer in the British Army serving in Bosnia and the Gulf War and then as a firefighter for Leicestershire Fire and Rescue Service, of which he was immensely proud.

He would be so bitterly disappointed that he had spent his life protecting others yet nothing had been done to protect and support his surviving partner.”

Of course, more widely, the discretional protections have been heavily criticised, with the Court of Appeal finding them to be discriminatory against younger members. I therefore welcome the Government’s proposals to remedy this discrimination. I am particularly supportive of the proposals surrounding the deferred choice underpin and the retrospective remedy, which is due to come into force by 1 October 2023. It is right that members already receiving pensions are given a choice as soon as practicable as to which pension benefits they would prefer to receive in respect of any remediable service rendered between 31 March 2015 and 1 April 2022.

Unfortunately, however—as I said in my response to the consultation on firefighters’ pensions prospective remedy—this will not address all the discrimination that the protections caused, the effects of which are still having a substantial impact on Mr Wilkens’s surviving family members. I therefore ask for the secondary legislation to contain provisions to ensure that surviving partners who would have been eligible to succeed a pension under the 2015 scheme had their partner not died during the transition period before they were tapered on to the reformed scheme are able to succeed the pension. As well as advancing the moral argument for such a change, I should add that the financial burden would be minimal, given that neither my office, Melanie nor the Fire Brigades Union has been able to find any other instances of this.

This was, unfortunately, a “perfect storm” of being the wrong age, sadly passing away at the wrong time, and not being married. Had Mr Wilkens been two years younger, had he passed away two years later, or had he and Melanie been married, Melanie would not have had to fight for access to his pension and to endure so much hardship at an already difficult time. We know that issues have been identified with the tapered protections, so may I ask the Minister please to consider new provisions to allow Melanie to succeed Mr Wilkens’s pension?

I am glad to have brought this issue to the House’s attention. How can it be that, in the 21st century, we have a situation in which a woman cannot claim the pension of a man with whom she had a home, a family and a mortgage, simply because they were not married?

[The Minister for Security and Borders (Damian Hinds)]

I congratulate my hon. Friend the Member for Loughborough (Jane Hunt) on securing this debate. I am grateful to her, and I welcome the opportunity to address the House on the important issue of firefighters’ pensions. The Government hugely value the unique roles that our firefighters undertake and it is only right that their pensions remain among the best pension schemes available in the public sector. Our brave firefighters keep us safe. They do the most extraordinary job day in, day out, in the most difficult situations.

The Government also recognise that the cost of providing public service pensions must be fair to the schemes’ members, the employers and the taxpayer. It is important that the costs of public service pensions are understood and fully acknowledged by Government so that they remain affordable and sustainable for generations to come.

[Jane Hunt]

I absolutely understand that, but this is about the discretionary element. As I see it, there is only one instance of this happening. The Prime Minister said at the time that the fire service could look at this, but the fire service does not believe that it can do so because of the rules and regulations. It is the discretionary element that I am interested in.

[Damian Hinds]

I am grateful to my hon. Friend for that intervention. There is some limited ability under the rules for fire authorities to exercise some discretion on some decisions. That would involve, for example, determining whether a person was on duty or not at the time of an injury or death. However, the rules of the 1992 scheme do not provide a fire authority with the discretion to pay a pension to an individual who does not qualify for it.

[Jane Hunt]

The point is that Mr Wilkens was on the 1992 scheme at the time and that, due to his age, he was being tapered over to the 2015 scheme. If he had not been that age, he would not have been tapering at the time and might already have been on the scheme, in which case his partner would immediately have got the pension.

[Damian Hinds]

I am grateful for that clarification, and I will come on to that point in a moment.

My hon. Friend has spoken movingly of the sad circumstances of the case of Ms Melanie Perry, whose partner Mr Wilkens passed away in 2016 and who did not qualify for any survivor pension entitlement. I appreciate that this is an extremely sensitive matter. It is the current legislation underpinning the firefighters’ pension schemes that provides the qualifying criteria for an individual’s pension entitlement and therefore sets the parameters on what payments can be made by an employer out of the pension scheme. On the death of a scheme member, the 1992 firefighters’ pension scheme, of which I understand Mr Wilkens was a member, provides benefits to the surviving spouse or civil partner. These benefits do not extend to unmarried partners. As my hon. Friend will know, that was quite common among pension schemes of that time.

It has been the position of successive Governments not to make retrospective changes to public service pension schemes, and that has not changed. A new pension scheme was introduced for all newly recruited firefighters in April 2006. While the 2006 scheme has a higher retirement age than that of the 1992 scheme, it does provide survivor benefits that extend to unmarried partners. At the time the 2006 scheme was introduced, fire and rescue authorities offered existing 1992 scheme members the option to transition to the 2006 scheme if they wanted to benefit from the modernised scheme design. I understand that a letter was sent to Mr Wilkens from his employing fire and rescue authority in August 2006 providing this option. Ultimately, it appears that Mr Wilkens did not take this option.

[Jane Hunt]

The Minister has mentioned the 2006 changes. At the time of Mr Wilkens’ passing in 2016, he and his partner had been together for 10 years, so that letter would have come at the beginning of their relationship. I think we can therefore forgive them for not taking up that offer at the time.

[Damian Hinds]

I understand my hon. Friend’s point.

In 2010, the coalition Government established the Independent Public Service Pensions Commission, chaired by Lord Hutton of Furness. The commission undertook a comprehensive review of the main public service pension schemes, including the firefighters’ schemes. Following the review, public service pensions underwent a significant period of change with the introduction of new, reformed unfunded pension schemes from April 2015. At that time, full and tapered protections were afforded to those scheme members who were closest to retirement. For firefighters, this included those who were within 14 years of their normal pension age.

In 2018, as my hon. Friend alluded to, these protections were found by the courts to be unlawfully discriminatory in respect of the firefighters’ and the judicial pension schemes on the grounds of age. In effect, the courts found that younger pension scheme members suffered a disadvantage as a result of the Government’s efforts to protect those nearest to retirement from the impact of the reforms. The Government accepted that ruling and that the remedy to remove the discrimination should apply to all public service pension schemes. The Government are now in the process of removing the discriminatory elements. This is a careful and complex process to get right.

The deferred choice underpin, referred to by my hon. Friend, will be introduced by the Government via the Public Service Pensions and Judicial Offices Bill currently before Parliament and will be enacted by regulations to be laid by the Home Office. It is the Government’s intention that the underpin will give the beneficiaries of deceased members the opportunity to choose from which pension scheme to receive their survivor benefits for any service during the period 1 April 2015 to 31 March 2022.

From the information provided, it appears that Mr Wilkens’s pension would qualify for that remedy. The impact of the remedy on Mr Wilkens’s survivor benefits will not be known until the remedy is fully implemented by October 2023. At that stage, fire and rescue authorities will start the process of contacting all those entitled to the remedy with details of their options, as the statutory pensions administrator for each area.

In closing, I thank my hon. Friend again for securing this important debate and for the elegant way in which she made her points in the House this evening.

Question put and agreed to.