When the government reformed public service pension schemes in 2014/15, it introduced transitional protections for older members. However in December 2018, the Court of Appeal ruled that these changes were age discriminatory because the protections did not apply to younger members – this is the McCloud judgment. The government has now introduced regulations implementing the McCloud remedy to remove the age discrimination. The regulations came into force on 1 October 2023.

The McCloud remedy will apply to almost all employers with staff in the LGPS, and will generate a variety of technical/legal issues. A national working group has been set up to consider the areas where additional guidance is needed, and some of the new guidance to be issued will be statutory, and some will be non-statutory. 

Statutory guidance will be issued covering areas where it is necessary to have a consistent approach and this is not achieved through the new regulations. This will include the prioritisation of McCloud cases and how to identify those members who qualify for McCloud protection in situations where there could be earlier service in another LGPS fund, or another public service pension scheme. Some other areas will have non-statutory guidance, such as administrative guidance and complex case examples, and how to deal with flexible retirement cases.

The take home message is that both administering authorities and other LGPS employers will now need to deal with a variety of McCloud-related issues, and may well need support from pension lawyers on issues which are both within and beyond the scope of the available guidance.

Local Government Forward View 2023

This article is part of Capsticks’ Local Government Forward View 2023. Read the other articles featured in this publication below:

• Combined Authorities
• Investment Zones
• Building Safety Reforms
• Levelling Up and Regeneration Bill
• Online Safety Bill
• Environmental Impact Assessments
• Procurement Bill
• Industrial action
• The conflict between trans rights and religion or belief

How Capsticks can help

To discuss how this may affect your organisation, please get in touch with Neil Bhan or Tiffany Cloynes.