Posts by David

David Davison

David Davison

Specialist consultant on pensions strategy for corporate, public sector and not for profit employers
David Davison

Employers in England, Wales and Northern Ireland LGPS will be bracing themselves for the results of the March 2019 actuarial valuations which should be landing in the inbox shortly (Scottish employers have another year to wait). So, what are they likely to see?

Asset returns have been positive over the period which will have a positive impact on the funding level, all other things being equal. Inflation is also broadly unchanged over the period. There was some optimism around mortality rates although an announcement of a fall in deaths in 2019 has potentially put something of a damper on that.

However, that’s likely to be all the good news. Gilt yields have continued to fall from just below 2.3% in 2016 to around 1.6% in 2019 placing a higher value on liabilities. Gilt yields have continued to fall subsequently with yields down around the 1.0% level now.

The big issues likely to make an impact are likely to be legislative ones. These valuations will see the incorporation of additional liabilities related to GMP equalisation. In July we also witnessed the Government being defeated in the McCloud case with speculation this could cost Funds billions of pounds. The case found that the Government had forced younger members of the Judges and Firefighters schemes to join less valuable schemes while older colleagues were protected by transitional arrangements providing them with valuable additional benefits. The Government was not granted leave to appeal so steps will now have to be taken to rectify the problem. The LGPS has similar transitional protections.

These issues will likely increase liabilities and therefore funding costs.

The uncertainty created is also likely to hit exiting employers and will result in uncertainty around the impact for employers providing out-sourced services who may be left ‘holding the baby’.

Many schemes had been going through a cost cap review which suggested they may have to increase the level of benefits being provided (as there was a cost surplus), however these deliberations were deferred awaiting the impact of these changes.

Employers may have to brace themselves for further cost increases with no real viable route to escape. Hopefully the LGPS England & Wales Consultation will look at offering some additional flexibilities and a more equitable exit basis. Fingers crossed.

David Davison

In my last Bulletin I provided some detail on why the current exit basis used by LGPS funds is based upon excessive prudence and is totally inequitable to exiting charities costing them £100’s of millions in excess exit payments, swelling Fund assets and reducing Council costs.

The approach is unfortunately also counter-productive as it locks charities in schemes by presenting them with unaffordable exit payments thereby increasing risk for other participants in the Scheme. Funds focus on the risk of default and don’t really assess the material risk of future accrual, particularly for organisations with a weak covenant. It could be argued that the greater risk lies with an employer continuing to accrue further liabilities, which they may be unable to afford, which places other employers at risk.

The cessation lottery

Below is a table showing gilt yields and inflation over the last 12 years.

It can be seen from this that yields were broadly above 4% until around 2011 when we began to witness a steady decline to current levels where they are at or below 2%. There has been some volatility in the inflation position though not to the same extent as with gilt yields. Lower gilt yields will be resulting in very materially higher cessation debts being required from exiting employers which often makes them unaffordable.

Cessation debts could have been 2 to 3 times the size depending upon when the cessation debt was calculated. As an example we recently witnessed a debt move by around 50% over a matter of months and because of where the assets were held the employer had no control over the figure during the period when they were awaiting cessation numbers from the Fund Actuary.

Taking cessation payments based on gilt yields may make some theoretical sense where liabilities in Funds are being secured by the purchase of broadly matching gilts. However, very few Funds do this and we would question if that is sensible and a good use of public monies given the longer term view that Funds can adopt, the relatively small proportion of overall liabilities these Funds are likely to represent as well as the potential returns which could be foregone. This would be particularly the case where small exiting employers had very young staff where a 100% gilts-based investment would be wholly inappropriate.

The vast majority of Funds take these cessation payments and continue to fully invest them in their standard growth portfolio meaning the Fund continues to take the investment risk, and indeed return, as demonstrated in my previous article.

Alternative solutions

A number of alternatives exist which could provide for a fairer distribution of risk on exit.

The PWC Report referred to in my previous article suggested the use of Liability Driven Investments which could increase the ‘secure’ discount rate which could be used, thereby reducing exit payments and making exit more affordable.

The cessation basis could also reflect the likely duration of the liabilities with a moving discount rate applied depending upon the likely term the assets will be held. This basis could also be adjusted depending upon the level of any security which could be provided.

We would urge the Ministry of Housing, Communities and Local Government and LGPS to consider these alternative solutions to look to achieve a more equitable distribution of risk and reward.

David Davison

I have long been of the view that the current basis of assessing payments for charities when they exit an LGPS is excessive and doesn’t provide a fair balance between the schemes and the charities. Indeed I’m not the only one to hold this view.

In 2015 the Scheme Advisory Board in England & Wales commissioned research from PWC on this specific issue which commented:-

“We recommend that Funds should not be permitted to use very onerous assumptions for exit bases. One way to achieve this would be to require that the discount rate applied should not be stronger than CPI plus 1.0% or plus 1.5%. This would be the maximum strength exit basis. The range suggested is consistent with cautious investment policies but not zero risk investment policies.”

Needless to say this view represented ‘an inconvenient truth’ for LGPS Funds so the recommendation was just completely ignored. Its likely that this approach may have needlessly cost the UK’s charity sector many £100’s of millions. So just how much have Funds, and indeed their sponsoring local authorities, benefitted from these payments?

If we use a simple example comparing returns and gilt yields to highlight the issue (i.e. at this stage we are assuming all other factors remain constant). We have cessation assets and liabilities of £1m at outset with estimated on-going liabilities of £670,000 based on a 67% cessation funding rate. Table 1 shows the potential return based upon a gilts-based discount rate of 1.7% and returns of 0.5%, 1.0% and 2.0% above gilt yield (the latter reflecting broadly the on-going funding assumption).

The table shows that a matching gilts-based liability would have increased to £1.4m after 20 years and £1.66m after 30 years. Over 20 years the equivalent asset value covering this at 0.5%, 1.0% and 2.0% above gilts would be £1.55m, £1.70m and £2.07m respectively. So effectively the Fund (i.e. other active employers – primarily the Council) would have benefitted from the cessation payment by anywhere between £150,000 (11%) to £670,000 (48%) over this period based on these assumptions.

The equivalent ‘on-going’ liability reflecting a 2% return above gilts would have been around £670,000 so the exiting employer would have been paying a cessation ‘premium’ of £330,000. Allowing for a discount rate of 1.0% and 0.5% above gilts this cessation payment would reduce by £180,000 and £90,000 respectively while still providing a reasonable security margin for the Fund.

However, the position is in reality much worse than the example as the actual returns achieved by the Funds over the last decade or so have been hugely in excess of those assumed. If we consider an employer exiting in 2008 using the actual average return disclosed in the LGPS SAB Annual Reports across all Funds (net of charges) and the actual prevailing gilt yields the picture is alarming.

Based upon the £1m starting point the actual return from April 2007 to March 2018 was 87.7% (average 7.97% p.a.) and the gilts return over the same period was 35.75% (average 3.25% p.a.). This means that the actual gilt value of the £1m liability would now be around £1.42m however the actual value of the assets would be nearly £2.3m. So the Fund will have made nearly £900,000 excess return over gilts on the £1m of assets over only 11 years and around £1.3m in total. Even with no cessation payment the assumed on-going asset value (£670,000) would by 2018 be in excess of £1.5m and therefore over the gilts-based value and well in excess of a likely ‘on-going’ value which would be around £1.2m.

Funds are therefore collecting huge and, in our view, unreasonable payments on exit well in excess of the amount of money actually needed to provide the benefits. We do not question the need for some form of prudence margin to be applicable for exiting employers but Funds are demonstrating excessive prudence and refusing to consider change because they have the power not to do so. It is not unreasonable to assume that Funds could easily have taken £100’s of millions in cessation debts from the charitable sector over the last decade or so and benefitted by additional multiples of that figure. Is it reasonable for public bodies to effectively ask our charitable organisations to cross subsidise their costs to that extent?

We are firmly of the view that the existing approach is flawed and in need of revision and we made some proposals how this could be addressed in our submission to the Consultation on LGPS in England & Wales though would be less than confident that the turkeys will vote for Christmas!

David Davison

A question in the recent policy consultation “Local Government Pension Scheme: Changes to the Local Valuation Cycle and the Management of Employer Risk” asking if schemes needed greater protections from admitted bodies, and some recent communication with a Fund, really highlighted a misconception held by Funds and those associated with them.

A constant frustration for me, and something which must be a huge irritation for charities participating in LGPS is to be accused by Funds of recklessly building up liabilities they can’t afford and then complaining about having to deal with them. This is a blatant distortion of the facts and admitted bodies would in my view have every right to feel aggrieved by the assertion. I’d just like to set out some facts so that if this assertion does rear its ugly head it can be swiftly returned to whence it came.

  • Most organisations participating in LGPS were encouraged to do so by Councils and Funds without being provided with any risk warnings about their participation. Charities therefore joined with the best of motives but often unaware of the future risks they’d be exposed to. Had these warnings been provided in a clear way I’m sure many Trustee Boards would have taken a decision not to participate.
  • Even today warnings are far from transparent and the key driver for organisations not participating is that they are not permitted to join without Government or Council protection.  Most Funding Strategy Statements outline the process for achieving this for potential participants however Funds have taken no steps to rectify the legacy position.
  • In a similar vein Funds have been happy to transfer liabilities built up by these public bodies to organisations without their knowledge, without any choice and on a basis which leaves the charity with a liability many times that of the public body. The inequity is enshrined in Regulation and Councils in my experience use it as an excuse to avoid dealing with liabilities accrued on their watch.  Should Funds not be looking to protect members interests to the maximum extent possible. Surely a public sector guarantee over historic liabilities does this?  Yet Funds have been reluctant to pursue this with conflicts of interest to the fore. Indeed from what I’ve seen Funds and government bodies have looked instead to seek every route possible to avoid their obligations.
  • Crucially then Regulation limits organisations ability to deal with the issue. While other UK DB schemes will allow employers to close to future accrual and continue to fund on an ‘on-going’ funding basis to manage down risk in LGPS Funds unilaterally trigger a cessation debt on a gilts basis. There is the constant insistence that this is the correct basis to value these liabilities even though that is not the way Fund themselves invest their assets or indeed usually the way assets are invested post a cessation. Councils are effectively using exiting charitable bodies to cross subsidise their funding. Even where professional advice has been provided to the Scheme Advisory Board recommending change this has been strategically ignored.
  • Even where some flexibility is offered this is on the repayment term, not on the closure basis. In addition Funds are using the negotiation around an exit to leverage additional security or extort higher contributions.
  • Funds usually have a one dimensional view of risk driven by what happens when an admitted body looks to exit the Fund. They are not however balancing this with the risk they are exposing participants to by allowing further accrual, particularly for those with weaker covenants. Funds are not assessing this risk to properly identify the overall position and better manage it.

Based on the above I think charities would have every right to question who needs protection from who?

David Davison

In a previous LGPS Bulletin I highlighted the consultation issued on the 8th May entitled “Local Government Pension Scheme: Changes to the Local Valuation Cycle and the Management of Employer Risk.” The consultation closes on the 31 July 2019 and a copy of our detailed response to the specific questions can be found here or click on the image below.

Our response highlights concerns over the quality of information provided by schemes, deficiencies with the proposals and existing Regulation, the calculation of cessation debts, the drive for security, legacy liabilities and the status of public bodies in the schemes, and makes proposals for a more equitable future framework.

Over the coming Bulletins I will be examining many of these issues in more detail.

PLEASE NOTE: Our response was updated on 12th August 2019 to include additional information.

David Davison

This article was originally published in Lexis Nexis on 4th April 2019

Pensions analysis: David Davison, director and owner of Spence & Partners who leads the public sector, charities and not-for-profit practice and heads a team advising third sector bodies on all aspects of pension provision, discusses the recent government consultation which intends to ensure that exit payments paid to public sector employees are ‘value for money for the taxpayer’.

Original news

HM Treasury opens consultation on restricting exit payments for public sector workers, LNB News 10/04/2019 90

HM Treasury has opened a consultation outlining how the government will introduce a £95,000 cap on exit payments for public sector workers. The policy will see UK civil service, local government, police forces, schools and the NHS taking part in the first stage of implementation. The consultation sets out proposed draft regulations, schedule to the regulations, accompanying guidance and directions. The deadline for responses is 11:59pm on 3 July 2019.

What is the background to HM Treasury’s consultation on draft regulations restricting exit payments in the public sector published on 10 April 2019?

There has been government concern for some time about the level of severance packages in the public sector. This issue dates back to May 2015, with the government announcing it would bring forward proposals to end six figure pay-outs, then running an initial consultation with proposals in February 2016 and implementing changes in the Small Business, Enterprise and Employment Act 2015 (SBEEA 2015) and amending in the Enterprise Act 2016.

SBEEA 2015 required secondary legislation which had a first reading in the House of Commons in September 2017, with them now consulting on the detail based upon the proposals issued on 10 April 2019. It’s been pretty slow progress, but I suppose no-one should be that surprised by the contents. When this was looked at initially, there seemed to be some high profile severances and a real concern about senior staff in the public service exiting for large severances and then returning to another similar job a short time later.

The proposals follow research they’d carried out which suggested that more than 1,600 highly paid workers received payments of more than £100,000 in 2016/17 costing a total of £198m. They estimate that the total cost of exit payments across the public sector in 2016/17 were £1.2bn. So, the proposed limit will impact less than 17% of total payments and any saving likely to be materially less than that as still some pay-out will be made. The focus is going to be very much limiting large payments at the top-end and not those for the vast majority.

What are the key proposals for change and why are they being implemented now? Are there any specific exclusions or exemptions under the proposals?

The proposals would implement a cap on the value of redundancy lump sums and pension top-up payments to £95,000 in total. Those organisations impacted are specified in the proposals, but it is the ultimate aim that the legislation will apply to all public sector employers at a future date so effectively we have a two-stage roll-out.

Payments made by devolved authorities are exempt, as are payments from secret intelligence service, the security service, the government communications HQ and the armed forces given their unique requirements. Payments from fire and rescue authorities are also proposed to be exempt as they do not increase the actuarial value of the pension payable.

As a general rule, accrued pension entitlements are exempt as they do not incur an additional cost to the public purse however payments which do involve an additional employer cost (such as ‘strain costs’ payable on redundancy) would be included. Other exemptions include death-in-service benefits, incapacity benefits, a payment in lieu of contractual leave not taken, payment in lieu of notice or any payment made by court order or a tribunal.

The proposals provide a standard legal underpin, however they do not prevent employers from applying alternatives.

How would the introduction of the proposals impact on public sector employees and employers?

It is the employer’s responsibility to ensure that a payment is not made in excess of the cap. This will place an additional administrative burden on employers. Clearly for employers it would reduce the overall cost of severance packages. It is also likely to make planning for these costs more certain. For employers there will be a requirement to consolidate all payments to ensure that the cap isn’t breached. This will mean ensuring that ‘strain costs’ are identified early in the process to allow these to be incorporated.

Employee payments will at the higher end be lower which may influence decisions about exiting as it may make them less attractive or indeed unaffordable. This may also make the option of restructuring senior roles more difficult for employers possibly trapping senior employees in roles they are not wholly committed to. That said it may promote greater transferability between roles.

There is some guidance on the order of payments in Section 6 of the draft Restriction of Public Sector Exit Payments Regulations 2019. The legislation also proposes some flexibility in the implementation of the cap. Where there is flexibility—such as the priority between cash payments and pension strain costs—these will have to be clearly communicated to the employee to allow the required decisions to be taken. It’s likely that engagement will be required at a much earlier stage in the process to facilitate this.

One major concern with the proposals is that they would create a two-tier system in the public sector between employees who are in funded pension schemes and those who are in unfunded schemes. In funded schemes the ‘strain cost’ for early retirement would be deducted from the capped figure or benefits reduced. For those in unfunded schemes no equivalent mechanism exists to recoup redundancy/early retirement costs even though the same equivalent cost would be experienced by the Exchequer. This could mean that employees (and in some cases employers) in unfunded schemes benefit from a much better deal than their counterparts in funded schemes.

Employers will also have to be very careful in the implementation period not to take decisions which could result in costs materially higher than the level of the cap when it is imposed.

What is the timetable for implementation of the changes? What are HM Treasury’s next steps?

The consultation will last for 12 weeks to 3 July 2019. Responses to the consultation may be published. Post this, the draft Regulations may be implemented as proposed or revised.

Interviewed by Varsha Patel.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

Link to original article –
https://www.lexisnexis.com/uk/lexispsl/localgovernment/document/412012/8V8N-WKK2-8T41-D1GT-00000-00/Capping-exit-payments-in-the-public-sector%E2%80%94a-review-of-the-draft-regulations-for-consultation/31544

David Davison

We have analysed the 2017 Fund actuarial valuations and carried out some analysis of the employer membership in Scottish LGPS to see how this is distributed. From this we can identify what issues Funds and employers might face.

There are 11 Scottish Funds with the share of overall employers shown below.

The numbers are dominated by Strathclyde Pension Fund, Lothian Pension Fund and North East Pension Fund who account for two thirds of the employers with the other eight Funds making up only one third. Borders, Dumfries & Galloway and Shetland all account for only around 2% each.

We identified a total of 544 employers and have classified them in to the six broad Groups as shown below.

Public bodies, such as Councils, Police and Fire Service, account for around 11% of the total number of employers though these bodies will account for the vast majority of the Funds liabilities.

Leisure organisations will tend to have been formed from outsourced agreements from local authorities and will be run as autonomous organisations.  Often this switch however has left these organisations without any protection should they wish to revise their membership of the schemes and has left them saddled them with huge inherited legacy liabilities from the Councils which they do not have the underlying asset base to support. These organisations therefore are effectively trapped in schemes and leaving them without the level of autonomy they believed they had.

Similarly schools and colleges will have evolved out of public entities or be private schools with public sector links. Participation in LGPS tends to be for non teaching staff. Again these organisations will have little if any financial protection and will find any changes to their LGPS membership complex and expensive to achieve. These organisations are also likely to be facing additional financial pressures from rising costs in the teachers pension scheme as well as some having to deal with membership of the University Superannuation Scheme (‘USS’) all putting a strain on already hard pressed budgets.

Private companies will tend to participate as a result of providing out-sourced public sector services and the requirement to maintain equivalent benefits for contracted staff under Fair Deal. Some of these organisations will be protected by Council guarantees or ‘pass through’ arrangements but many will not, often leaving their shareholders oblivious to the underlying risks they are running.

That leaves the vast majority of employers (around 360) as either charities, who account for nearly 60% of the employer membership, or social housing organisations who account for about 7%, so nearly two thirds in total. In liability terms they will probably account for considerably less than 10% of overall fund liabilities. Some of these bodies may have exited the Fund since the 2017 valuation was carried out.

Some of these charities may also be undertaking public sector contracts and therefore have some form of guarantee or transferee admission body status but the vast majority will not.

The key SPPA findings were that:-

  • There were 530 employers with at least one active member. Of these 422 were admission bodies (covering both transferee and community admission bodies) of which 223 had no guarantor and so were at some point likely to be liable for a cessation payment. Of these 102 had 5 or fewer members where a cessation payment could be deemed to be payable in the short term.
  • Worryingly of the 102, 60 remain open to new members and are therefore building further liabilities which suggests either a lack of understanding of their position or a position forced upon them as a result of the Scottish LGPS Regulations.
  • Of the 121 with no guarantor and more than 5 members 94 remained open to new members.
  • There are 41 employers at greatest risk as they have fewer than 5 members and are closed to new members which mean that a cessation is imminent.
  • The cessation deficit associated with the ‘at risk’ group of 41 was estimated to be in the region of £12m-£15m (i.e. and average of around £300,000 per body). Two LGPS Funds looked at the financial position in their schemes which showed that for organisations with 5 or less members the funding position moved from around £1.93m in surplus on an on-going basis to around £9.4m deficit on a cessation basis. This very much resonates with my experience.
  • The total liabilities for the 223 admitted bodies with no guarantor were in excess of £350m and the cessation deficit could be in excess of £150m.
  • The cessation position could be materially worse now given falls in gilts yields since 2014 which highlights the issue with the cessation basis being adopted.

Based on these numbers I would expect that the position in England and Wales would be 8-10 times greater, so these issues could affect in the region of 2000 other charities and account for deficits approaching £80-£100m. A material proportion of this will relate to liabilities transitioned surreptitiously from local authority to unsuspecting charities.

Changes to Scottish LGPS Regulations in 2018 looked to provide additional flexibility to look to manage these issues however they haven’t been widely adopted by the Funds.

More research needs to be carried out to understand the pension position fully in relation to the covenant position of the organisations concerned and to look to develop solutions, and potentially further update Regulation, to allow this issue to be effectively managed.

David Davison

On the 8th May the Ministry of Housing, Communities & Local Government issued a policy consultation entitled “Local Government Pension Scheme: Changes to the Local Valuation Cycle and the Management of Employer Risk.” This comes following the publication in September of the “Tier 3 employers in the LGPS” research findings. The consultation closes on the 31 July 2019.

The first proposal is to change the actuarial valuation cycle in LGPS, from every 3 years to every 4 years, to coincide with the 4 yearly valuations of LGPS as a whole. I do have some concerns that for admitted bodies in the Schemes this will mean that they receive less information and ultimately the information provided will have to have a much longer shelf life. I suspect this is driven more by the inefficiencies in administration and a drive for cost savings than it is for any drive for valuation consistency.

I think to make this change work Schemes should be supplying annual updates on the funding and cessation position (perhaps linked to the provision of FRS102 information) which would allow organisations to be better informed about their position and options.

Of greater importance to charity participants are a series of proposals primarily aimed at looking to help employers better manage exits from the Schemes.

The document recognises that “for some employers a significant issue is the cost of exiting the scheme which can be prohibitive.” The consultation seeks views on two alternative approaches:-

  • To introduce a ‘deferred employer’ status that would allow funds to defer the triggering of an exit payment for certain employers who have a sufficiently strong covenant. Whilst this arrangement remains in place, deferred employers would continue to pay contributions to the fund on an on-going basis. This is looking to broadly replicate the ‘deferred debt arrangements’ (‘DDA’) brought in by DWP to deal with Section 75 debts in multi-employer schemes and the suspension arrangements implemented in Scottish LGPS in 2018;
  • To allow an exit payment calculated on a full buyout basis to be recovered flexibly – i.e. over a period of time providing this is deemed to be in the interests of the Fund and other employers. This is designed to put in to regulation a framework to provide flexibilities on a more formal and consistent basis to those being utilised ‘informally’ by some funds via alternative arrangements.

Whilst I welcome the sentiment and the objective to formalise any additional flexibilities offered the consultation proposals stop well short of fully recognising the issues and finding a full range of workable solutions to deal with them.

  • The DDA legislation and the changes to the cessation position in LGPS in Scotland brought in in 2018 have both been damp squibs with schemes choosing to ignore the changes and to continue to plough their own furrow. The fundamental issue seems to be that schemes are using any request to use the new regulations as an opportunity to re-negotiate security arrangements with the participant. This is hugely short-sighted as it ignores the lack of security on the benefits already built up and that it cannot be in the interests of the organisation, or indeed the other organisations participating, to build further liabilities. This stance in most cases therefore forces organisations to stay in the Scheme which is exactly the result the changes were looking to avoid! The proposals in this Consultation just seem re-inforce this issue referring to employers who are “sufficiently strong” being the only ones who avail of the proposed funding flexibilities – exactly the employers who can probably afford to exit or even potentially continue in the Scheme;
  • The proposals need to consider what options are available for less “sufficiently strong” employers. It cannot be sensible to force employers in to insolvency as a result of their pension liabilities but instead find a better way to manage these. In the interests of the impacted employer and others in the Scheme it would seem more productive to identify methods where the fund can obtain the maximum possible amount, even if this amount is less than the full cessation position. Some LGPS have already pioneered work in this area and the proposed changes are well behind the curve in terms of effective solutions;
  • The gilts based cessation methodology is flawed. Over the past 10 years gilt yields have fallen from over 5% to well below 2% which means that exiting employers are subjected to something of a lottery in exit terms. Currently high cessation values based on low gilt yields make exits less affordable keeping employers tied to the scheme – again counter-productive. Funds feel their hands are tied in investment terms forcing them to either invest very long term liabilities in poorly performing gilt assets or some funds remaining invested in the same way effectively just taking the cross subsidy benefit from their charity participant to help fund public sector liabilities. A more equitable system could be to look at the rolling average gilt value over a period or based upon the expected local authority borrowing costs;
  • There continues to be no recognition of the issue of legacy liabilities within LGPS. It is wholly inequitable for public sector bodies to expect admitted bodies in their Funds, often charities, to cross subsidise the public entity for benefits built up by staff while working for them. These liabilities should continue to be held by the public body in the same way as they were pre a transfer and new employers should be fully protected from these. Benefits reverting back to a prior employer for service linked to that employer just means that they continue to be dealt with on an on-going’ valuation basis (as they were initially) and not converted to a cessation basis. This is a solution which is also likely to make exits more affordable.
  • The suggestion that the steps proposed are linked to protecting the remaining employers in the Funds and this is repeated here. This whole issue of residual risk has been over-egged. The risk is already there and rising – what is needed is an affordable way to minimise the associated risk with the accrued liability and limit any future accrual. How can it be sensible to have 2 employers where one has one active member and one has no active members and yet they are both treated in vastly different ways.

The proposals in this consultation paper are a hugely disappointing response to the issues and in my view provide a wholly inadequate range of options to address the major issues faced. You’d have thought having sat on its hands over this issue for such a long time that the response would have been more comprehensive and considered.

I will be preparing a more detailed response to the consultation which I will share in a future Bulletin. I would also suggest that if you are a charity affected by these issues that you also respond to the Consultation.

David Davison

This is a challenging time for LGPS. Funding pressures, consolidation, Tier 3 issues and investment pooling are all high on the agenda. When it comes to taking effective decisions and shaping the future direction of LGPS there needs to be confidence that these issues are being addressed independently and without conflicts of interest. However is this really the case?

LGPS are run as parts of a local authority and the key staff are Council employees. Usually the individual ultimately responsible for the delivery of scheme services is a senior executive or finance officer in the Council. Can these individuals discharge their duties to the scheme independently of their responsibilities to the Council and can Pension Managers do likewise when their ultimate line manager holds this position? How independent can these key people ultimately be when they are beholding to councillors in the local authority for agreeing budgeting and staffing levels? Would decisions in any way be swayed by these day to day concerns rather than the complete impartiality required on any decision they are taking?

Conflicts of interest are obvious so the key question must therefore be how well are they managed? The 7 principles in public life (‘the Nolan Principles’) require selflessness, integrity, objectivity, accountability, openness, honesty and leadership.

The Pension Regulator’s guidance on conflicts of interest in public service schemes (such as LGPS) focuses on potential conflicts of interest as a member of the pension board. Any such member must not have “a financial or other interest which is likely to prejudice a person’s exercise of functions.” It goes on to confirm that “actual conflicts cannot be managed, only potential conflicts.” Wider examples are given where senior staff may be conflicted.

The test is that the scheme manager must be satisfied. 

Conflicts must be managed in 3 stages, namely identifying, monitoring and managing.

In practice however does this really fully address governance concerns. How seriously are Executives taking these conflicts, fully meeting the relevant Nolan principles and codes of conduct?

How might this impact on non Council participants in the Fund?

Information cannot be available to a Pension Fund Head as part of a negotiation and not to a Council FD if both are the same person! How can a Council FD claim to be detached from the policy in a Fund’s Funding Strategy Statement when they are the individual who has signed and issued it!  How can a Fund be expected to robustly pursue a Council guarantee for an employer when it is the Council FD who is required to agree it and provide sign off? And yet from the schemes perspective it should be doing so to protect other employers.

This does not create an environment for challenge, growth and change but one which favours the status quo. There is little or no motivation to change historic practices and to innovate and this reflects the ponderous pace of change in schemes and their inability to reflect their employer and employee needs. This is also reflected in the myriad of local practices which have evolved in schemes over many years which do not bear close scrutiny. Schemes a short geographical distance apart can adopt wildly differing approaches to managing exactly the same issue.

I am not for a moment suggesting that decisions are deliberately being subject to bias but the potential is there for implicit bias, which is exactly what good governance and the necessary checks and balances are there to resolve.

The model operated by Local Pension Partnership covering a number of regions also provides offers some room for optimism as it has implemented the required additional independent governance tier and their approach has resulted in welcome levels of innovation and flexibility.

One of the options considered as part of the review of local government pension schemes in Scotland could provide a blueprint for change. The formation of a single Scottish LGPS operated independently from local authorities, which could be self-financing and run autonomously by a wholly independent board would provide complete independence and additional comfort that the required governance structure is in place and operating efficiently.

But how close are we to getting something like this more consistently? A long way off I suspect. There aren’t really similar discussions to those in Scotland on-going in England, Wales and Northern Ireland, and those in Scotland are some way from implementation. Why would Funds themselves be the turkeys voting for Christmas and push this change agenda earlier? Any impetus really needs to come from central government and have a reasonable timescale imposed if it is not to be subject to local / regional self-interest. Central government need to grasp the nettle here if financial savings are to be made and a more independent and consistent form of governance is to be achieved.

David Davison

I have highlighted the issue of legacy debt in LGPS in numerous previous bulletins, in numerous publications and at events. The whole issue is often met with some degree of disbelief. Rightly organisations question why should they be made responsible for pension liabilities which belong to someone else and why are public bodies taking the opportunity to avoid costs which are rightfully theirs.

Pension Funds and Councils are just choosing to avoid the issue and Government are just choosing to put it in the too difficult pile and ignore.

At the start of the year I issued an open letter to the Work & Pensions Committee to see if they would be prepared to raise the problem as the number of organisations I’m witnessing who are experiencing difficulties as a result of this issue has increased very significantly over the past number of months, I suspect as membership numbers in LGPS within charities continue to fall having closed schemes to new entrants.

I strongly believe that there is a potential tidal wave facing the charitable sector linked to this issue and the wider cessation debt regulation. Statistics compiled by Scottish Government back in 2014 for their schemes identified that of 422 admission bodies 223 had no guarantor. Of these 102 had fewer than 5 members and so were close to the point where they would have to manage a cessation.

Two LGPS Funds looked at the financial position in their schemes which showed that for organisations with 5 or less members the funding position moved from around £1.93m in surplus on an on-going basis to around £9.4m deficit on a cessation basis. This very much resonates with my experience and I suspect the gap has widened since 2014.

Based on these numbers I would expect that the position in England and Wales would be 8-10 times greater, so these issues could affect in the region of 2000 other charities and account for deficits approaching £80-£100m a material proportion of which relates to liabilities transitioned surreptitiously from local authority to unsuspecting charities.

A small number of LGPS have recognised the issue and made changes to deal with it but they are very much in the minority as the majority continue to stubbornly cling to the inequitable status quo.

Recent changes to the Scottish LGPS Regulations wholly ignored the issue and it was also studiously ignored by the Tier 3 review in England & Wales carried out towards the end of 2018.

The response from the Work & Pensions Committee has been positive and they have referred the matter to the Pensions Minister. I thank them for that. I will publish the letter and any response when it is received.

In the interim I would ask LGPS Funds to review this issue and to decide to ‘do the right thing’.

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