Confused teacher pension rules could leave academy bosses at risk of losing retirement benefits, legal experts warn, sparking calls for the government to clarify eligibility. Widespread confusion over who can join the Teachers鈥 Pension Scheme (TPS) prompted one trust to switch its central team to an alternative in a bid to stay on the right side of the rules. Meanwhile, another academy chain has banned management remaining on the TPS. But other trust chief executives are still on it. Experts say the grey area could leave some leaders refused benefits when they retire, or leave trusts liable to refund contributions if found to have incorrectly kept staff with on the TPS. And muddying the waters further, those in similar management positions leading religious boards of education have a carve-out that makes them eligible for a teacher鈥檚 pension. Call for clarity Jean Boyle, a partner at the law firm Stone King, wants the 鈥済rey area鈥 resolved. 鈥淚t would be extremely helpful if the TPS could provide further guidance on this point.鈥 Staff are eligible if they are in a 鈥減redominantly teaching role鈥, official TPS guidance states. The rules do not, however, . Instead, teacher disciplinary regulations are relied on, which define it as planning and preparing lessons, delivering lessons, and reporting on or assessing pupil progress and attainment. An update last year said it was 鈥渦nlikely鈥 executive heads and chief executives would 鈥渇ulfil all parts鈥 of these. However, they may be eligible under the last clause 鈥 as long as they are 鈥渄irectly responsible鈥 for reporting or assessing pupil progress. Dr Mary Bousted If the responsibility is delegated to another staff member, they 鈥渇all outside of the scope鈥. 鈥淭here must be a degree of proximity to the pupil or student,鈥 the guidance says. Staff in 鈥渁 financial or administrative role鈥 will not be eligible, with the most likely alternative being the local government pension scheme (LGPS). Employers are also told to be 鈥減articularly careful鈥 over eligibility for CEOs who started out as teachers 鈥 which is the majority. Mary Bousted, the former joint general secretary of the National Education Union, said: 鈥淚t鈥檚 difficult to argue that you can have it both ways 鈥 that you can have a private sector-equivalent salary [as a CEO] and get membership of the TPS. 鈥淚t鈥檚 a bit as though you鈥檙e having cake and eating it here.鈥 Forty-five per cent of senior trust leaders were on the TPS in 2021, show figures compiled by the Confederation of School Trusts (CST), with most of the rest enrolled with the LGPS. Melanie Moffat, a pensions specialist at the Association of School and College Leaders (ASCL), stresses both public sector schemes offer 鈥渂roadly comparable benefits鈥. Employees will 鈥渙nly be eligible for one or the other depending on the exact nature of their role鈥. Frustrations over rules Of England鈥檚 20 largest MATs, 14 confirmed their chief executives were not with the TPS. Six did not respond. Accounts for Delta Academies Trust suggest Paul Tarn, its chief executive, was with the TPS between 2016 鈥 when he took on the role 鈥 until February 2022. Since then, he has been with the LGPS. The trust did not comment on why the switch was made. GLF Schools said it has 鈥渁 very clear policy on the TPS 鈥 we believe the scheme is for teachers and not management鈥. None of its executive team is a member of the scheme. Oliver Burwood, of the Diocese of Norwich Education and Academies Trust, 鈥渇ound the greyness [around eligibility] frustrating鈥. Oliver Burwood TPS and union advice 鈥渓ed us to believe that the CEO role may (although not definitively) not be eligible鈥. The trust decided the 鈥渞ight thing to do鈥 was to move to LGPS as there was 鈥渘o doubt about eligibility鈥. Rob McDonough, the chief executive of the East Midlands Education Trust, thinks it becomes 鈥渕ore challenging鈥 for leaders to remain on the TPS 鈥渋f they move into a central position鈥. 鈥淧erhaps only those in the smallest trusts will retain any semblance of hope of remaining in the scheme.鈥 Schools Week has spoken to the chief executives of four small to medium-sized trusts who are still members of the scheme. Andrew Minchin, of the Beyond Schools Trust in Kent, said he and his executive team are 鈥渁ctively involved in going into classrooms and supporting teacher development鈥 by, among other things, quality-assuring lessons. Action taken after pension breaches TPS guidance states it is for employers 鈥渢o determine the eligibility鈥. This is because they are 鈥渕ore likely to understand the main thrust of a person鈥檚 job role in line with a person鈥檚 contract of employment鈥. ASCL guidance says 鈥渁ction will be taken by the TPS to correct the position and the contributions refunded鈥 if an 鈥渋ndividual is incorrectly placed into鈥 it. In such circumstances, Boyle says that at 鈥渢he point of retirement鈥 the pension provider could 鈥渋n theory refuse to pay out benefits鈥. While the TPS would likely refund 鈥渃ontributions to the trust and the employee, the CEO would be effectively without a pension [for the period they were ineligible], which could result in liability for the trust concerned鈥. The outsourcing firm Capita, which administers the scheme, says it 鈥渕onitors and records all participation in the TPS and will investigate whether that is in accordance with the regulations, if there is reasonable cause to do so鈥. Where it has identified someone who is ineligible, 鈥渁ll applicable service is removed鈥. In many cases they will be able to join the LGPS and the service 鈥渕oved with the appropriate adjustment to contributions鈥. The Department for Education did not respond when asked how many times this had happened. Warnings over ‘significant’ payouts Leaders鈥 union the NAHT recommends decisions over chief executive and executive head eligibility should be recorded in governor or board minutes. This would 鈥減rovide the employer with a defence should the individual鈥檚 membership鈥 be the subject of a challenge鈥. Doug Mullen, a partner at law firm Anthony Collins, has said that academy trusts should ensure 鈥渙nly eligible鈥 staff join the scheme . They could also be left 鈥渉aving to fund equivalent benefits outside the scheme that could be costly鈥. Labelling CEO eligibility 鈥渁 grey area鈥, Boyle adds 鈥渕ost鈥 continue to be active, eligible members of TPS, with many making 鈥渓ife plans鈥 based on this. Samira Sadeghi At Insignis Academy Trust, central staff with responsibilities for learning are designated as teachers in a 鈥渓inked school鈥. Garret Fay, its chief executive, could 鈥渂e timetabled in that school鈥 to provide cover. He is also 鈥渉eavily involved in discussions around curriculum planning鈥 for each of his academies, an area 鈥渟ome CEOs have no engagement with鈥. Samira Sadeghi, CST鈥檚 director of trust governance, stresses there is not a 鈥渙ne-size-fits-all answer on eligibility鈥. She encourages academy chains to 鈥渞egularly review pay and conditions for senior staff in the round鈥 particularly in the light of any changes to the trust’s structures鈥. Diocese directors carved out Despite this, there are circumstances where staff can still be eligible for TPS without involvement in 鈥渢eaching work鈥. They are referred to as 鈥渙rganisers鈥 in the regulations. Individuals performing 鈥渄uties in connection with the provision of education鈥 other than administrative services鈥 in diocesan boards of education (DBEs) and Roman Catholic diocesan schools commissions can access the TPS. The bodies have responsibility for the church or Catholic schools, with DBE responsibilities stretching to religious education and collective worship. Accounts for five DBEs show they have staff on the scheme. Carolyn Shoyer, Leicester鈥檚 diocesan director of education, and her deputy director of education are both members. Shoyer says there 鈥渋s no grey area for those working for a diocesan board of education鈥 and that staff who do not hold QTS are instead members of a church fund. Those working for charities the Inspiring Futures Foundation and Stapleford Centre, with the Royal National College for the Blind and bodies affiliated to the National Open College Network are also included under the 鈥渙rganiser鈥 exemption. The DfE says it is up to an employer to decide 鈥渨hether an individual meets the necessary criteria to participate鈥 in the TPS.