Devon And Somerset Fire And Rescue Authority v Howell & Anor [2023] EWHC 257 (Ch) (13 February 2023)

Devon And Somerset Fire And Rescue Authority v Howell & Anor [2023] EWHC 257 (Ch) (13 February 2023)

A right to early pension under the Firefighters' Pension Scheme that is subject to the employer's (Fire Authority's) future consent is not an 'actual or prospective right' within the meaning of paragraph 22(4)(a) of Schedule 36 to the Finance Act 2004. The requirement for third-party consent means the right is not unqualified and therefore does not attract transitional tax protection for a protected pension age below 55.

Citation
[2023] EWHC 257 (Ch)
Parties
Claimant: Devon and Somerset Fire and Rescue Authority; First Defendant: Lee Howell; Second Defendant: The Commissioners for His Majesty's Revenue and Customs
Jurisdiction
England and Wales
Judgment Date
13 February 2023
Procedural Posture
Part 8 Claim (statutory Construction, Pension Scheme) / Judgment After Trial
Outcome
Claim dismissed on the key issue; declaration refused that Mr Howell had an actual or prospective right to early pension as at 5 April 2006.
Legal Topics
Transitional Tax Relief, Protected Pension Age, Statutory Interpretation, Firefighters' Pension Scheme, Finance Act 2004, Declaratory Relief
Pensions Taxation Public Sector Employment Transitional Tax Relief Protected Pension Age Statutory Interpretation Firefighters' Pension Scheme Finance Act 2004 +1 more

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Parties

Devon and Somerset Fire and Rescue Authority

Claimant

Lee Howell

First Defendant

The Commissioners for His Majesty's Revenue and Customs

Second Defendant

Procedural Posture

Part 8 Claim (statutory Construction, Pension Scheme) / Judgment After Trial

Legal Issues

  1. 1 Whether Mr Howell had an 'actual or prospective right' to benefits from an age of less than 55 under the Firefighters' Pension Scheme as at 5 April 2006 for the purposes of transitional tax relief under Schedule 36, Finance Act 2004.
  2. 2 Whether the requirement for employer consent to early retirement prevents the existence of an 'actual or prospective right'.
  3. 3 Whether the court should grant declaratory relief as to the entitlement condition under the Finance Act 2004.

Ratio Decidendi

A right to early pension under the Firefighters' Pension Scheme that is subject to the employer's (Fire Authority's) future consent is not an 'actual or prospective right' within the meaning of paragraph 22(4)(a) of Schedule 36 to the Finance Act 2004. The requirement for third-party consent means the right is not unqualified and therefore does not attract transitional tax protection for a protected pension age below 55.

Court Disposition

Claim dismissed on the key issue; declaration refused that Mr Howell had an actual or prospective right to early pension as at 5 April 2006.

Orders

  • No declaration granted as to entitlement condition under Schedule 36, Finance Act 2004.
  • Parties to be heard on whether proceedings should remain open for further issues (retirement condition).