S.I. No. 281/2002 - Local Authority Members (Gratuity) Regulations, 2002

The Minister for the Environment and Local Government, in exercise of the power conferred on him by Sections 4 and 142 of the Local Government Act, 2001 (No. 37 of 2001) and Section 12 (10) of the Local Government Act, 1998 (No. 16 of 1998) in so far as Article 9 is concerned, with the consent of the Minister for Finance, hereby makes the following regulations:

Short Title.

1.       These Regulations may be cited as the Local Authority Members (Gratuity) Regulations, 2002.

Interpretation.

2.       (1)      In these Regulations —

“the Act” means the Local Government Act, 2001 (No. 37 of 2001);

“the 2001 Regulations” means the Local Government (Representational Payment for Members) Regulations, 2001 ( S.I. No. 552 of 2001 );

“the applicable annual rate” shall be construed in accordance with article 6(1) and (3) of the 2001 Regulations;

“appropriate local authority” means —

(a)      as respects a local authority other than a town council mentioned in Part 2 of Schedule 6 to the Act, the local authority of which the person is a member on the date such membership ceases, and

(b)      as respects a town council mentioned in Part 2 of Schedule 6 to the Act, the county council in whose county the town is situated;

“gratuity” means a gratuity determined in accordance with article 5;

“gratuity service” means the aggregate of a member's reckonable service and any notional period added to his or her qualifying service pursuant to article 3;

“local authority” shall have the meaning assigned to it by section 2 of the Act;

“member” means a member of a local authority and includes a Cathaoirleach and Leas-Chathaoirleach;

“the Minister” means the Minister for the Environment and Local Government;

“qualifying service” means service given as a member of the local authority, or any other local authority, on or after the 4^th day of May, 2000;

“reckonable service” means —

(a)      the number of years of a member's qualifying service during which he or she was a member of a county council or a city council,

(b)      the number of years of a member's qualifying service during which he or she was a member of a local authority mentioned in Part I of the Schedule to the 2001 Regulations, divided by 2,

(c)      the number of years of a member's qualifying service during which he or she was a member of a local authority mentioned in Part II of the Schedule to the 2001 Regulations (as amended by article 10), divided by 4,

(d)      the number of years of a member's qualifying service during which he or she was a member of a local authority mentioned in Part III of the Schedule to the 2001 Regulations, multiplied by 3/22,

subject to the proviso that any qualifying service which a member has in excess of 20 years shall be disregarded; where a member has qualifying service in excess of 20 years, the excess shall be disregarded in such a manner as will produce the most favourable result for him or her;

“years”, save where the context otherwise requires, means a figure determined by the formula —

A + (B/365)

where -

A        is the number of completed years in the period in question, and

B        is any number of days additional to a completed year or a number of completed years in such period, and

“years” shall be construed accordingly.

(2)      In these Regulations, any reference to an article which is not otherwise identified is a reference to an article of these Regulations.

(3)      In these Regulations, any reference to a sub-article, paragraph or subparagraph which is not otherwise identified is a reference to the sub-article, paragraph or subparagraph of the provision in which the reference occurs.

Addition to Qualifying Service.

3.       (1)      Where a person ceases to be a member in accordance with article 4(2)(b) the appropriate local authority may add to his or her qualifying service —

(a)      where his or her qualifying service is not less than 3 years and less than 5 years, a period equivalent to such qualifying service, or, if less, an amount of notional service equivalent to the period of additional qualifying service which he or she would have if he or she had served to the age of 65 years,

(b)      where his or her qualifying service is not less than 5 years and less than 10 years, the greater of -

(i)      10 years less the amount of his or her qualifying service, or, if less, an amount of notional service equivalent to the period of additional qualifying service which he or she would have if he or she had served to the age of 65 years, or

(ii)      3 years and 122 days, or, if less, an amount of notional service equivalent to the period of additional qualifying service which he or she would have if he or she had served to the age of 50 years.

(c)      where his or her qualifying service is 10 years or more, 3 years and 122 days, or, if less, an amount of notional service equivalent to the period of additional qualifying service which he or she would have if he or she had served to the age of 50 years.

(2)      Any notional service added to a person's qualifying service under this article shall, for the purposes of determining his or her gratuity service, be deemed to have been qualifying service in the position which he or she held when he or she ceased to be a member and the provisions of the definition of “reckonable service” in article 2(1) shall be applied to it as if it were such qualifying service.

(3)      (a)     A period of notional service shall not be added under this article where the qualifying service of a member amounts to 20 years or more.

(b)      The sum of a member's qualifying service and any period of notional service added to such qualifying service under this article shall not be greater than 20 years.

Grant of Gratuity.

4.       (1)      Where a person ceases to be a member on or after the date of the making of these Regulations having not less than 3 years' qualifying service, the appropriate local authority shall grant to him or her (or, in the case of his or her death, to his or her legal personal representative) a gratuity in any of the specified circumstances in sub-article (2).

(2)      The specified circumstances specified in sub-article (1) are as follows:

(a)      where the person has attained the age of 50 years,

(b)      where the person ceases to be a member on account of his or her having become incapable of performing his or duties as a member by reason of permanent infirmity of mind or body,

(c)      where the person dies while a member and a gratuity would have been granted to him or her if he or she had ceased to be a member by reason of permanent infirmity of mind or body on the date of his or her death.

Determination of Gratuity.

5.       (1)      The amount of the gratuity to be granted to a person who ceases to be a member pursuant to article 4 shall be determined as —

where —

A    is the applicable annual rate payable by virtue of article 6(1) and (3) of the 2001 Regulations on the date he or she ceased to be a member, and

B    is the number of years of his or her gratuity service.

(2)      Where a gratuity is granted pursuant to article 4(2)(c), in determining the gratuity the provisions of article 3 shall apply as if the person had ceased to be a member by reason of permanent infirmity of mind or body on the date of his or her death.

(3)      A gratuity determined under sub-article (1) shall be payable by the appropriate local authority as soon as is practicable following the date the person ceases to be a member. Where the gratuity is granted pursuant to article 4(2)(c), it shall not be paid until such time as probate or other proof of title of the legal personal representative of the deceased member is furnished to the appropriate local authority.

Preservation of Gratuity.

6.       (1)      Where a person ceases to be a member before he or she has attained the age of 50 years, other than in circumstances where the provisions of paragraph (b) or (c) of article 4(2) apply, and he or she has at that time not less than 3 years' qualifying service, the appropriate local authority shall grant to him or her (or, in the case of his or her death before attaining the age of 50 years, to his or her legal personal representative a preserved gratuity with effect from the date he or she attains the age of 50 years or, if earlier, the date of his or her death.

(2)      The amount of the preserved gratuity to be granted to or in respect of a person pursuant to sub-article (1) shall be determined in accordance with article 5 subject to the proviso that, in the application of the formula contained in sub-article (1) of that article-

A   shall be the applicable annual rate payable by virtue of article 6(1) and (3) of the 2001 Regulations on the date he or she attained the age of 50 years or the date of his or death, as appropriate.

(3)      Where a person who ceased to be a member in the circumstances specified in sub-article (1) subsequently, but before he or she attains the age of 50 years, becomes a member, any entitlement under this article shall cease.

Former member who was granted a gratuity becoming a member again.

7.       (1)      Where a person who -

(a)      was granted a gratuity pursuant to article 4, and

(b)      subsequently becomes a member,

ceases, having not less than 3 years' qualifying service in respect of such subsequent membership, to be a member in any of the circumstances specified in sub-article (2) of that article, the appropriate local authority shall grant to him or her (or, in the case of his or her death, to his or her legal personal representative) a gratuity in respect of his or her subsequent period of membership, subject to the proviso that the number of years of qualifying service which the person had at the time the original gratuity was granted, together with any period added to such qualifying service pursuant to article 3, was less than 20 years.

(2)      The amount of a gratuity to be granted to a person referred to in sub-article (1) shall be determined in accordance with article 5, subject to the proviso that, in the application of the formula contained in sub-article (1) of that article —

B    shall be the number of years of his or her gratuity service as determined by the lesser of —

(a)  (i)   the number of years of his or her qualifying service in respect of his or her subsequent period of membership, and

(ii)  any notional period added to such qualifying service pursuant to article 3, or

(b)  20 years' qualifying service less -

(i)   the number of years of qualifying service which the person had at the time the original gratuity was granted, and

(ii)  any notional period added to such qualifying service pursuant to article 3.

Information.

8.       (1)      A local authority shall exchange such information with any other local authority as may be required in relation to the grant determination or payment of a gratuity.

(2)      A local authority may by notice in writing request any member to supply, within such period as it may specify, such information as it may require for or in relation to the grant, determination or payment of a gratuity under these Regulations and the member shall supply such information.

(3)      A local authority may defer payment of a gratuity in the event of failure to supply information pursuant to a notice referred to in sub-article (2).

Revocations.

9.       Article 9 of the Local Authority Members (Gratuity Scheme, 1998 ( S.I. No. 232 of 1998 ) is hereby revoked.

Amendment of the 2001 Regulations.

10.     The 2001 Regulations are hereby amended by the insertion of “Mullingar” after “Leixlip” in Part II of the Schedule to those Regulations.

The Minister for Finance hereby consents to the Local Authority Members (Gratuity Regulations, 2002.

EXPLANATORY NOTE

(This note is not a part of the Instrument and does not purport to be a legal interpretation).

These Regulations make provision and specifies conditions for the grant of a gratuity to or in respect of members of local authorities, pursuant to sections 4 and 142 of the Local Government Act, 2001 .