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The Government has been consulting on draft amendments to the TPS Regulations to introduce phased withdrawal of independent schools from the TPS. The consultation document, and the draft amendments to the TPS regulations, are both now available on this page. By way of reminder, phased withdrawal would allow independent schools to opt out of TPS participation for future staff whilst allowing existing staff to remain as members (which is not currently permissible under the current regulations). The consultation has now concluded, and the following documents are now available:

  • the consultation document is available here;
  • the government’s response to the consultation is available here; and
  • the statutory instrument amending the TPS regulations (see here) was laid before parliament on 8 July and will come into force on 1 August.

The government’s response to the consultation summarises the amendments to the regulations, having considered the opinions expressed by stakeholders during the consultation. In particular, there were some concerns expressed that certain groups could be disproportionately affected by phased withdrawal. As a result, the draft regulations provide that:

  • A teacher who opted out of the TPS would be eligible to be re-enrolled where that election to opt-out took effect prior to the date that the school became a phased withdrawal school. No such exemption exists for a teacher that opts out after a school becomes a phased withdrawal school, who would lose the right to opt back in to the TPS. The government’s response to the consultation underlines the importance of teachers understanding the impact of opting out of the TPS, and refers to upcoming guidance for employers and teachers: ‘41. The department agrees with the comments that the impact of opting out of the TPS by a phased withdrawal teacher will need to be carefully communicated. The scheme administrator is working on guidance for employers and teachers at a school that is considering phased withdrawal, setting out employer obligations and how members may be affected’;
  • Similarly, a teacher who is a deferred member immediately prior to the phased withdrawal date due to a period of non-pensionable family leave, non-pensionable sick leave or unpaid leave, none of which lasted more than 5 years, would be eligible to be re-enrolled immediately upon their return to the same employer; and
  • A teacher who leaves pensionable service after their school is accepted for phased withdrawal, due to family leave or sick leave which lasted no more than 5 years, would be eligible to be re-enrolled upon their return to the same employer.
  • Creation of a new type of guarantee where an independent school elects for phased withdrawal to distinguish from the guarantee required from accepted schools. The regulations would allow for the continuation of the guarantee requirement that was in place as an accepted school; and
  • An independent school that opts for phased withdrawal would be entitled to reapply to be a fully accepted school if they wish to resume full participation at a future date.

If you require further information about anything covered in this briefing, please contact Hugh Young, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, July 2021

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