The Pensions Ombudsman (TPO) has upheld a complaint against the Lancashire Fire and Rescue Service (the authority), confirming that the 32 per cent uplift in pay was pensionable under the 1992 regulations, and supported by relevant case law.

‘Mr T’ had complained that his Day Crewing Plus (DCP) allowance should be treated as fully pensionable in accordance with the Firefighters Pension Scheme (England) Order 1992, and that the authority unreasonably delayed issuing a response under stage two of the internal dispute resolution procedure (IDRP).

He initially started working on the DCP system on a temporary basis in February 2016, before being transferred to the role of crew manager from November 2016.

At this time, he also received a letter confirming that he would receive an additional non-pensionable DCP allowance equivalent to 32 per cent of his basic pay.

However, in September 2017, the Fire Brigades Union (FBU) issued a circular, clarifying that the DCP allowance payable to members who work the Day Crewing Duty System was pensionable pay.

Indeed, the allowance was initially introduced by the authority as a non-pensionable allowance in October 2010, although in February 2012, the Leicestershire Fire and Rescue Service (FRS) obtained advice on its proposed DCP allowance.

Counsel's opinion stated that the DCP premium would constitute part of the amount determined in relation to performance of the duties of the firefighters role, and was consequently pensionable.

This was based on case law, with the Norman v Cheshire Fire and Rescue Service case representing the current legal position.

In light of this, the FBU wrote to the authority, advising that following the Norman v Cheshire judgment, Leicestershire FRS had received legal advice that DCP allowances would now have to be pensionable.

Despite this, the authority’s correspondence with the FBU in 2017 restated its position that the DCP allowance was a locally agreed non-pensionable allowance, although it did state that it was prepared to enter negotiations with FBU to make it pensionable.

On or around 1 November 2017, Mr T subsequently made a complaint under the IDRP, receiving a response from the authority on 29 November, which explained that the DCP allowance was introduced following extensive discussions, and was a voluntary arrangement.

It also advised that the DCP allowance was higher than it otherwise would have been because it was not pensionable, and did not uphold the complaint, prompting Mr T to make an application under stage two of the IDRP on 23 May 2018,

In August 2018, the authority’s offer to reach agreement on a 30 per cent pensionable DCP allowance was rejected by the FBU.

However, the authority did not issue a response to Mr T’s complaint until 18 January 2019, stating that his application had been placed in “abeyance” because of ongoing negotiations with the FBU.

It also provided minutes from a Resources Committee meeting held in November 2018, demonstrating that the complaint was discussed at this time, as well as a prior meeting in September.

Despite this, and after lengthy discussion with the FBU, a fully pensionable DCP allowance was implemented on 1 June 2020.

The pensions ombudsman, Anthony Arter, highlighted this development in his decision, also confirming that whilst the authority considers the 32 per cent uplift to represent compensation, rather than pay for work done, he does not agree.

He also noted that Rule G1 of the 1992 regulations provides that there should be no differentiation between whole or part time employees, therefore stating that the DCP allowance paid to Mr T as fully pensionable from 18 February 2016.

As such the authority has been directed to treat the full 32 per cent uplift as pensionable pay from 18 February 2016 for the purposes of calculating Mr T’s pension benefits under the 1992 scheme.

It will also be required to calculate the arrears of employee and employer pension contribution, and offer Mr T an opportunity to pay the arrears as a lump sum, or through a repayment plan, as well as paying the employer arrears.

In addition to this, Arter awarded Mr T £500 for the non-financial injustice suffered, stating that the authority should have issued an interim reply to the second IDRP complaint in line with the 1996 regulations.

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