Stokes & Anor v Oxfordshire County Council

For calculating average pensionable pay under the Firemen's Pension Scheme Order 1992, pay “for” a year means pay referable to work or employment during that year. It does not mean all pensionable pay received during the year.

Arrears paid in a lump sum remain attributable to the earlier periods in which the work was performed, except insofar as they relate to work in the relevant year. This avoids pensions being artificially affected by payment timing.

Two appeals from determinations of the Pensions Ombudsman concerned the calculation of firefighters' pensions under clause G1(3) of the February 2008 version of the Firemen's Pension Scheme Order 1992.

Each appellant had received retrospective salary arrears shortly before retirement. The Ombudsman held that the arrears were not pensionable pay “for” the year in which they were paid, save insofar as they related to work performed in that year. The issue was whether the relevant words referred to the year of receipt or to the period of employment and work to which the pay related.

1. Appeals dismissed. The determinations of the Pensions Ombudsman were correct.
2. Clause G1(3) of the Firemen's Pension Scheme Order 1992 is clear in context. “Pensionable pay for the year ending with the relevant date” means pensionable pay referable to, relating to, or in respect of employment or work done in that year. It does not mean pensionable pay received in that year.
3. The definition of pensionable pay in clause G1(1), particularly the reference to amounts determined in relation to performance of the firefighter's role, supports that construction. The words “aggregate” and “average” do not alter it. “Average” was a vestigial expression carried over from earlier schemes.
4. If the provision were ambiguous, the same result would follow from the statutory purpose and consequences. A receipt-based approach would create arbitrary windfalls or reductions based on payment timing.
5. The amendment replacing “during” with “for” might have affected the argument on ambiguity, but the court did not need to decide the meaning of the unamended provision. The other cited decisions concerned different interpretive issues and did not determine the question before the court.

These were appeals to the High Court on points of law from determinations of the Pensions Ombudsman. The court dismissed both appeals and upheld the Ombudsman's interpretation of clause G1(3).