A recent Schools Week article has raised the question of whether Trust CEOs and other central team staff are eligible to join the Teachers’ Pension Scheme (TPS).

The article calls for the Government or the TPS to clarify eligibility, to avoid a future scenario that potentially could see some individuals refused pension benefits when they retire, or leave trusts liable to refund contributions, if found to have incorrectly kept staff on the TPS.

The issue mainly surrounds CEOs, with other central team staff typically members of the alternative LGPS scheme for non-teaching staff. However, most CEOs have a teaching background and so will be members of the TPS at the point they are promoted to their top leadership role.

The problem stems from the requirement that staff enrolled to the TPS have a “predominantly teaching role”. However, the Teachers’ Pension Scheme Regulations do not expressly define what ‘teaching work’ is, so TPS instead rely on other definitions of teaching found in Regulations such as the Teachers’ Disciplinary (England) Regulations 2012. 

The TPS update from last year attempts to explain who is eligible to join, and explains that ‘teaching work’ would be classed as:

a) planning and preparing lessons and courses for pupils
b) delivering lessons to pupils
c) assessing the development, progress, and attainment of pupils; and
d) reporting on the development, progress and attainment of pupils.

It goes on to say that:

“the activities specified are not teaching work for the purposes of these Regulations if the person carrying out the activity does so (other than for the purposes of induction) subject to the direction and supervision of a qualified teacher…”

This clause explains why teaching assistants cannot join the TPS and have to instead become members of the LGPS.

The TPS update talks specifically about those holding an executive head or chief executive officer role, and states that it is “unlikely they’ll fulfil all parts which make up ‘teaching work’ but that’s not to say that those roles would not qualify for membership of the Scheme.“

It makes it clear that such roles may still be eligible under c) and d), however it is necessary for the individual to undertake some academic and teaching roles. 

The update specifically states that “Any CEOs and Executive Headteachers that occupy a financial or administrative role wouldn’t be eligible for membership of the Scheme”.

It goes on to explain that:

i) There must be a degree of proximity to the pupil or student. If an individual isn’t directly responsible for the development, progress and attainment of a student(s), the individual will fall outside of the scope of eligibility. For example, a chief executive officer (CEO) who delegates all teaching work to others ie. to the head teachers at each school in the Academy Trust.

ii) There’ll be occasions where an individual may have two roles (split 50/50), which may be best served as two separate contracts. One may relate to their teaching work and covered by the scheme, whereas the other would fall outside of it in respect of their non-teaching work. If these roles are separated, it makes the eligibility of the role simpler to determine.

‘Organisers’

The TPS update also references the term ‘organiser’. The Regulations recognise that there may be circumstances where other individuals may be eligible for membership of the scheme, without necessarily being involved directly in teaching work, and term ‘organiser’ was used in the TPS 2010 Regulations for such a person.

An ‘organiser’ is defined as ‘a person who performs duties in connection with the provision of education or services ancillary to education other than administrative services.’ 

An individual will only be eligible for the role of an ‘organiser’ if their employer is one of a number of specific bodies, including a diocesan board of education established under the Diocesan Boards of Education Measure 1991. 

Aside from anyone qualifying under the specific body rule, most ‘organisers’ would fall under the LGPS unless specifically referred to in the Teachers’ Pension Scheme Regulations.

Interestingly, and perhaps tellingly, the Schools Week articles state that 14 of the country’s largest 20 largest MATs confirmed that their CEOs were not with the TPS, and the other six did not respond when asked.

What action do I need to take?

CEOs will understandably be concerned about their own financial position. Chief financial officers and Trustees will be keen to ensure the trust’s position is not compromised in any way. Could retiring CEOs have a financial case against their previous employer if they find themselves without a pension at retirement, and they argue that the employing trust should have enrolled then under the alternative LGPS scheme?

It is the employers’ responsibility to determine the eligibility of the individual for membership of the Teachers’ Pension Scheme in accordance with the Regulations, and so this is for the management teams of trusts to decide, on an individual basis, having taken appropriate professional advice. 

It is clear that care may be required when members start in a teaching role but have a change in role later on in their career, removing their eligibility. 

The guidance suggests that trusts may wish to consider expressly stating the weight of ‘teaching’ in an individual’s job description since this will provide direct evidence that could be used at a later date, should a question be raised about the individual’s eligibility. 

If an individual is incorrectly placed into membership of the Scheme, TPS may take action to correct the position so it is important that careful consideration is given when assessing individual roles, and that this is reviewed on a regular basis for senior leaders in particular.

If you have any doubt over the continued eligibility of a role, we recommend that you take specialist legal advice.

The next step

For any enquiries regarding this insight, please contact Allan Hickie on a.hickie@uhy-uk.com or your usual UHY academy adviser.

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