Scottish Public Pensions Agency - queries regarding police scheme calculation error: FOI Review

Information requested

Original request: 202600505705

1. You previously advised that 269 retired SPPA police scheme members have been affected by the calculation error that resulted from incorrect guidance received by SPPA in February 2025. To date, how many of those officers affected have/have not been notified that potentially their pension has been calculated incorrectly?

2. You advised that you were made aware of this error in February 2025, what steps have since been taken to address the issue and notify those affected?

3. How many officers have continued to receive the incorrect monthly pension without being formally notified by the SPPA since February 2025?

4. The Scottish Public Finance Manual refers to Good Faith. Officers affected have undoubtedly acted in good faith and the error which has resulted has been caused by UK Government and SPPA, which are both outwith the control of recipients. As such, what was the decision making process / guidance received in relation to the "clawback" which is underway?

5. Taking into account The Scottish Public Finance Manual, what options have been agreed in respect of repayments?

Response

This review relates specifically to questions 4 and 5 of your original request, as set out in our acknowledgement. The remaining elements have been addressed separately under FOI 202600509625.

I have now completed an independent review of the handling of these parts of your request. I have concluded that a different decision should be substituted for our original response, for the following reasons.

Regarding the content of the response, I found that the following errors were made.

You raised concerns about the use of the exemption under section 29(1)(a) (formulation or development of government policy).

Following a full reassessment, I agree that this exemption was incorrectly applied in our original response, we were incorrect to apply a FOISA section 29(1)(a) exemption on the grounds that the information related to the formulation of a new government policy or the development of an existing policy. I apologise for this.

After careful consideration of the information held, I have established that some of the information should have been exempt under section 30(b)(i)(prejudice to effective conduct of public affairs) and section 36(1) confidentiality) and section 38(1)(b) of the Freedom of Information (Scotland) Act 2002 (FOISA).

Section 30(b)(i) – Free and Frank Provision of Advice

This exemption applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on the Police ill-health pensions will substantially inhibit the provision of such advice in the future, particularly because this would prevent them discussing and completing risk assessments and options, the financial considerations and explore advice which contains potential concerns and impacts of stakeholders.

In applying this exemption, I have considered the public interest in both disclosing and withholding the information.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing Ministers and officials a private space within which to explore and refine the Government’s decisions on overpayments may affect members until the Government as a whole can adopt a that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, so that good decision making can be considered. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

Having weighed these factors, I remain satisfied that the public interest in maintaining the exemption outweighed the public interest in disclosure.

Section 36(1) – Legal Professional Privilege

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is some public interest in release as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

Having considered the material carefully, I am satisfied that the balance of the public interest lies in maintaining this exemption.

Section 38(1)(b) (Personal Information)

An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, i.e. names and contact details of individuals, and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption

Information Now Suitable for Release

Since the date of your original request, Ministerial decisions have now been taken in relation to the treatment of ill‑health pension overpayments.

Because of this, some of the information that was previously sensitive due to ongoing internal consideration is now suitable for disclosure, provided below.

Therefore in the interests of transparency, I can confirm that since the original response a decision has been taken by Ministers not to recover ill-health overpayments.

Please note that no final decision has yet been taken in respect of over‑ or under‑payments relating to injury benefits. Accordingly, information on that matter continues to be withheld under section 30(b)(i), as deliberations remain ongoing.

Conclusion

In summary:

• We were incorrect to apply section 29(1)(a) to your initial response.
• However, having conducted an independent review, I have concluded that the some of the information is still exempt at the time of your original request, under sections 30(b)(i), 38(1)(b) and 36(1) of FOISA.
• As time has passed and decisions have now been made, I am able to provide some of the information that can be disclosed as noted above.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

FOI 202600509487 - Information released - Annex A

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