Written by on September 13, 2017

Part III

Is a public officer appointed prior to February 22nd 1985 legally entitled to pension both under the Pensions Act and the NIS?

In Hermilyn Armstrong v. The Attorney General of Grenada Price Findlay J. held that Armstrong was not entitled to receive pension under both the Pensions Act and the NIS Act. Consequently she made the following order: “If [Armstrong] has received any NIS benefits those sums are to be deducted from the monies she is entitled to under the Pension Act.”

This aspect of the decision in Armstrong was surprising for many reasons including that-

It is my understanding that the issue of whether Armstrong was entitled to both NIS and pension and gratuity under the Pensions Act was not argued before the Court.

For close to two decades before the decision in Armstrong, retirees appointed prior to April 4th 1983 have been receiving both NIS and Pensions Act benefits.

NIS is a contributory pension scheme. Both the employer and the employee pay towards the ultimate pension. Therefore Armstrong would have contributed to her NIS pension. Is her portion to be also deducted?

Section 4 of the Pensions Act states that, “There shall be charged on and paid out of the Consolidated Fund all such sums of money as may from time to time be granted by way of pension, gratuity or other allowance in pursuance of this Act.” The plain meaning of this provision is that pension and gratuity payable under the Pensions Act are to be charged to the consolidated fund (central government account) and paid out of the consolidated fund. The decision of the Learned Judge seems to run contrary to this provision.

The NIS Act offers special protection to a pension obtained under the Act.

Section 36 for example prevents the seizure, sequestration or levying upon an NIS pension in respect of any debt or claim whatsoever.

Section 62 allows for the creation of private pension schemes “Provided that no private scheme shall be regarded as a substitute for benefit provided under this Act.” In other words, benefits under a private scheme are to be additional to benefits obtained under the NIS Act.

It is worthy of note that section 46 of the NIS Act provides that the government of Grenada for the purposes of the Act is to be treated as if it was a private employer. Hence applying principles of interpretation, I submit that the pension under the Pensions Act is to be treated as a private pension scheme and section 62 applies meaning that the benefit under the Pensions Act is additional to that under the NIS.

The order of the Learned Judge therefore runs contrary to the provisions protecting the NIS pension.

The Learned Judge order states that “If [Armstrong] has received any NIS benefits those sums are to be deducted from the monies she is entitled to under the Pension Act.” Is it that the decision applies only to monies already received by Armstrong?

And if the Judge’s order applies to the future, how does it work? Armstrong is due a monthly pension of $1,134.43 under the Pensions Act. She is due a pension of $953.77 from NIS. How does the order of the judge apply?

Is it that government pays Armstrong her $1,134.43 per month and NIS pays government $953.77? If so under what legal authority does this transaction take place?

Or is it government pays Armstrong $180.66 (1,134.43-953.77) and NIS pays her the $953.77. If so under what legal authority does the government pay a lesser sum than what is due under the Pensions Act?

Or is it that government pays the full sum of $1,134.43 and NIS pays nothing out of their coffers? If so what legal authority would NIS be exercising to withhold the pension due to Armstrong.

Clarification of this confusing situation arising from the surprising aspect of the decision in Armstrong is urgently required.

Joseph Ewart Layne

Joseph Ewart Layne is a graduate of Hugh Wooding Law School. He is the holder of an LLB (Honours) and an LLM (in Commercial & Corporate Law) from London University; and he recently completed an LLM in Legislative Drafting from UWI (St. Augustine).



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