Child Support, Pensions and Social Security Bill

Child Support, Pensions and Social Security Bill - continued	House of Commons
PART II, PENSIONS - continued

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Reports about winding-up.

39. - (1) After section 72 of the Pensions Act 1995 there shall be inserted-

	"Supervision of winding-up
Reports to Authority about winding-up.	72A. - (1) Where-
	(a) an occupational pension scheme is being wound up, and
	(b) the winding-up is one beginning at a time (whether before or after the passing of this Act) by reference to which regulations provide that it is to be a winding-up to which this section applies,
	it shall be the duty of the trustees or managers, in accordance with this section, to make periodic reports in writing to the Authority about the progress of the winding-up.
	(2) In the case of each winding-up, the first report to be made under this section shall be made-
	(a) except in a case to which paragraph (b) applies-
	(i) after the end of the prescribed period beginning with the day on which the winding-up began; and
	(ii) before the end of the prescribed period that begins with the end of the period that applies for the purposes of sub-paragraph (i);
	and
	(b) in a case where the winding-up began before the coming into force of the regulations which (for the purposes of subsection (1)(b)) prescribe the time by reference to which the winding-up is one to which this section applies, before such date as may be prescribed by those regulations.
	(3) Subject to subsection (4), each subsequent report made under this section in the case of a winding-up shall be made no more than twelve months after the date which (apart from any postponement under subsection (4)) was the latest date for the making of the previous report required to be made in the case of that winding-up.
	(4) If, in the case of any report required to be made under subsection (3), the Authority consider (whether on an application made for the purpose or otherwise) that it would be appropriate to do so, they may, at any time before the latest time for the making of that report, postpone that latest time by such period as they think fit.
	(5) The latest time for making a report shall not be postponed under subsection (4) by more than twelve months.
	(6) Subject to the application of the limit specified in subsection (5) to the cumulative period of the postponements, more than one postponement may be made under subsection (4) in the case of the same report.
	(7) A report under this section-
	(a) must contain such information and statements as may be prescribed; and
	(b) must be made in accordance with the prescribed requirements.
	(8) Regulations may-
	(a) provide that, in prescribed circumstances, there shall be no obligation to make a report that would otherwise fall to be made under this section;
	(b) make provision for the period within which, and the manner in which, applications may be made for a postponement under subsection (4); and
	(c) modify subsections (3) and (5) by substituting periods of different lengths for the periods for the time being specified in those subsections.
	(9) If there is any failure by the trustees or managers of any scheme to comply with their duty to make a report in accordance with the requirements imposed by or under this section-
	(a) section 3 applies, if the scheme is a trust scheme, to any trustee who has failed to take all such steps as are reasonable to secure compliance; and
	(b) section 10 applies (irrespective of the description of scheme involved) to any trustee or manager who has failed to take all such steps."

(2) In section 124 of that Act (interpretation of Part I), after subsection (3) there shall be inserted-

	"(3A) In a case of the winding-up of an occupational pension scheme in pursuance of an order of the Authority under section 11 or of an order of a court, the winding-up shall (subject to subsection (3E)) be taken for the purposes of this Part to begin-
	(a) if the order provides for a time to be the time when the winding-up begins, at that time; and
	(b) in any other case, at the time when the order comes into force.
	(3B) In a case of the winding-up of an occupational pension scheme in accordance with a requirement or power contained in the rules of the scheme, the winding-up shall (subject to subsections (3C) to (3E)) be taken for the purposes of this Part to begin-
	(a) at the time (if any) which under those rules is the time when the winding-up begins; and
	(b) if paragraph (a) does not apply, at the earliest time which is a time fixed by the trustees or managers as the time from which steps for the purposes of the winding-up are to be taken.
	(3C) Subsection (3B) shall not require a winding-up of a scheme to be treated as having begun at any time before the end of any period during which effect is being given-
	(a) to a determination under section 38 that the scheme is not for the time being to be wound up; or
	(b) to a determination in accordance with the rules of the scheme to postpone the commencement of a winding-up.
	(3D) In subsection (3B)(b) the reference to the trustees or managers of the scheme shall have effect in relation to any scheme the rules of which provide for a determination that the scheme is to be wound up to be made by persons other than the trustees or managers as including a reference to those other persons.
	(3E) Subsections (3A) to (3D) above do not apply for such purposes as may be prescribed."

(3) After section 49 of that Act (other responsibilities of trustees employers etc.) there shall be inserted-

"Record of winding-up decisions.	49A. - (1) Except so far as regulations otherwise provide, the trustees or managers of an occupational pension scheme shall keep written records of-
	(a) any determination for the winding-up of the scheme in accordance with its rules;
	(b) decisions as to the time from which steps for the purposes of the winding-up of the scheme are to be taken;
	(c) determinations under section 38;
	(d) determinations in accordance with the rules of the scheme to postpone the commencement of a winding-up of the scheme.
	(2) For the purpose of this section-
	(a) the determinations and decisions of which written records must be kept under this section include determinations and decisions by persons who-
	(i) are not trustees or managers of a scheme, but
	(ii) are entitled, in accordance with the rules of a scheme, to make a determination for its winding-up;
	and
	(b) regulations may, in relation to such determinations or decisions as are mentioned in paragraph (a), impose obligations to keep written records on the persons making the determinations or decisions (as well as, or instead of, on the trustees or managers).
	(3) Section 3 applies to any trustee of a scheme who fails to take all such steps as are reasonable to secure compliance by the trustees of that scheme with the obligations imposed on them by this section.
	(4) Section 10 applies to any trustee or manager of a scheme who fails to take all such steps as are reasonable to secure compliance by the trustees or managers of that scheme with those obligations."

Directions for facilitating winding-up.

40. After the section 72A inserted in the Pensions Act 1995 by section 39 there shall be inserted-

"Directions by Authority for facilitating winding-up.	72B. - (1) Subject to the following provisions of this section, the Authority shall have power, at any time after the winding-up of an occupational pension scheme has begun, to give directions under this section if they consider that the giving of the direction is appropriate on any of the grounds set out in subsection (2).
	(2) Those grounds are-
	(a) that the trustees or managers of the scheme are not taking all the steps in connection with the winding-up that the Authority consider would be being taken if the trustees or managers were acting reasonably;
	(b) that steps being taken by the trustees or managers for the purposes of the winding-up involve things being done with what the Authority consider to be unreasonable delay;
	(c) that the winding-up is being obstructed or unreasonably delayed by the failure of any person-
	(i) to provide information to the trustees or managers;
	(ii) to provide information to a person of a prescribed description; or
	(iii) to take any step (other than the provision of information) that he has been asked to take by the trustees or managers;
	(d) that the winding-up would be likely to be facilitated or accelerated by the taking by any person other than the trustees or managers of any other steps;
	(e) that in any prescribed circumstances not falling within paragraphs (a) to (d)-
	(i) the provision by any person of any information to the trustees or managers or to any other person, or
	(ii) the taking of any other step by any person,
	would be likely to facilitate or accelerate the progress of the winding-up.
	(3) The power of the Authority to give a direction under this section in the case of a winding-up shall not be exercisable on any of the grounds set out in subsection (2)(a) to (d), except where-
	(a) periodic reports about the progress of the winding-up are required to be made under section 72A; and
	(b) the first report that has to be made for the purposes of that section in the case of that winding-up either has been made or should have been made.
	(4) Regulations may provide that, in prescribed circumstances, the Authority shall not give a direction on the ground set out in subsection (2)(e) except in response to an application made by the trustees or managers of the scheme for the giving of a direction on that ground.
	(5) A direction under this section is a direction in writing given to and imposing requirements on-
	(a) any or all of the trustees or managers of the scheme;
	(b) a person who is involved in its administration; or
	(c) a person of a prescribed description.
	(6) The requirements that may be imposed by a direction under this section are any requirement for the person to whom it is given, within such period specified in the direction as the Authority may consider reasonable-
	(a) to provide the trustees or managers with all such information as may be specified or described in the direction;
	(b) to provide a person who is of a prescribed description with all such information as may be so specified or described;
	(c) to take such steps (other than the provision of information) as may be so specified or described.
	(7) If, at any time before the end of a period within which any step is required by a direction under this section to be taken by any person, the Authority consider (whether on an application made for the purpose or otherwise) that it would be appropriate to do so, they may extend (or further extend) that period until such time as they think fit.
	(8) Regulations may-
	(a) impose limitations on the steps that a person may be required to take by a direction under this section;
	(b) make provision for the period within which, and the manner in which, applications may be made for a period to be extended (or further extended) under subsection (7).
	(9) In this section references, in relation to a scheme, to a person involved in the administration of the scheme are (subject to subsection (10)) references to any person who is so involved otherwise than as-
	(a) the employer in relation to that scheme;
	(b) a trustee or manager of the scheme;
	(c) the auditor of the scheme or its actuary;
	(d) a legal adviser of the trustees or managers of the scheme;
	(e) a fund manager for the scheme;
	(f) a person acting on behalf of a person who is involved in the administration of the scheme;
	(g) a person providing services to a person so involved;
	(h) a person acting in his capacity as an employee of a person so involved;
	(i) a person who would fall within any of paragraphs (f) to (h) if persons acting in relation to the scheme in any capacity mentioned in the preceding paragraphs were treated as involved in the administration of a scheme.
	(10) In this section references, in relation to a scheme, to a person involved in the administration of the scheme do not include references to persons of a particular description if regulations provide for persons of that description to be excluded from those references.
Duty to comply with directions under s. 72B.	72C. - (1) It shall be the duty of any person to whom a direction is given under section 72B to comply with it.
	(2) Where a direction is given under section 72B to the trustees of a trust scheme, section 3 applies to any trustee who fails, without reasonable excuse, to take all such steps as are reasonable to secure compliance with it.
	(3) Section 10 applies to any trustee or manager of a scheme who fails, without reasonable excuse, to take all such steps as are reasonable to secure compliance by the trustees or managers of that scheme with any direction given to them under section 72B.
	(4) Section 10 applies to any person who-
	(a) is a person to whom a direction under section 72B is given otherwise than in the capacity of a trustee or manager, and
	(b) without reasonable excuse, fails to comply with that direction.
	(5) For the purposes of this section it shall not be a reasonable excuse in relation to any failure to provide information in pursuance of a direction under section 72B that the provision of that information would (but for the duty imposed by subsection (1) of this section) involve a breach by any person of a duty owed to another not to disclose that information."

Other provisions

Information for members of schemes etc.

41. - (1) In subsection (1) of section 113 of the Pension Schemes Act 1993 (regulations as to information to be provided to scheme members etc.), for the word "and" at the end of paragraph (c) there shall be substituted-

"(ca) of the pensions and other benefits an entitlement to which would be likely to accrue to the member, or be capable of being secured by him, in respect of the rights that may arise under it; and".

(2) After subsection (3) of that section there shall be inserted-

	"(3A) The regulations may provide for the information that must be given to be determined, in whole or part, by reference to guidance which-
	(a) is prepared and from time to time revised by a prescribed body; and
	(b) is for the time being approved by the Secretary of State.
	(3B) The regulations may, in relation to cases where a scheme is being wound up, contain-
	(a) provision conferring power on the Regulatory Authority, at times before the period expires, to extend any period specified in the regulations as the period within which a requirement imposed by the regulations must be complied with; and
	(b) provision as to the contents of any application for the exercise of such a power and as to the form and manner in which, and the time within which, any such application must be made."

Investigations by the Ombudsman.

42. - (1) The Pension Schemes Act 1993 shall be amended as follows.

(2) In section 148(5) (meaning of parties to an investigation for the purposes of staying proceedings), after paragraph (b) there shall be inserted-

	"(ba) any actual or potential beneficiary of the scheme whose interests are or may be affected by the matters to which the complaint or dispute relates,
	(bb) any actual or potential beneficiary of the scheme whose interests it is reasonable to suppose might be affected by-
	(i) the Pensions Ombudsman's determination of the complaint or dispute, or
	(ii) directions that may be given by the Ombudsman in consequence of that determination,".

(3) For subsection (1) of section 149 (obligation to allow persons to comment on allegations in complaint or reference) there shall be substituted-

	"(1) Where the Pensions Ombudsman proposes to conduct an investigation into a complaint made or dispute referred under this Part, he shall-
	(a) give every person against whom allegations are made in the complaint or reference an opportunity to comment on those allegations,
	(b) give every person responsible for the management of the scheme to which the complaint or reference relates an opportunity to make representations to him about the matters to which the complaint or dispute relates, and
	(c) give every actual or potential beneficiary of that scheme whose interests are or may be affected by the matters to which the complaint or dispute relates, an opportunity to make representations about those matters.
	(1A) Subject to subsection (1B), subsection (1) shall not require an opportunity to make comments or representations to be given to any person if the Pensions Ombudsman is satisfied that that person is-
	(a) a person who, as the person or one of the persons making the complaint or reference, has had his opportunity to make comments or representations about the matters in question; or
	(b) a person whose interests in relation to the matters to which the complaint or dispute relates are being represented, in accordance with rules under this section, by a person who has been given an appropriate opportunity to make comments or representations.
	(1B) The Pensions Ombudsman shall, under subsection (1), give an opportunity to make comments and representations to a person falling within subsection (1A)(a) in any case in which that person is a person who, in accordance with rules, is appointed or otherwise determined, after the making of the complaint or reference, to represent the interests of other persons in relation to the matters to which the complaint or dispute relates."

(4) In subsection (3) of section 149 (matters as to which rules may be made), for "and" at the end of paragraph (b) there shall be substituted-

	"(ba) for the interests of all of a number of persons who-
	(i) are actual or potential beneficiaries of the scheme to which the complaint or reference relates, and
	(ii) appear to have the same interest in relation to any of the matters to which the complaint or dispute relates,
	to be represented for the purposes of the investigation by such one or more of them, or such other person, as may be appointed by the Ombudsman or otherwise determined in accordance with the rules,".

(5) In that subsection, at the end of paragraph (c), there shall be inserted "and

(d) for the payment of legal expenses incurred by a party to an investigation (as defined in section 148(5)) out of funds held for the purposes of the scheme to which the complaint or reference relates."

(6) After subsection (7) of section 149 there shall be inserted-

	"(8) References in this section to the matters to which a complaint or dispute relates include references to any matter which it is reasonable to suppose might form the subject of-
	(a) the Pensions Ombudsman's determination of the complaint or dispute, or
	(b) any directions that may be given by the Ombudsman in consequence of that determination."

(7) In subsection (1) of section 151 (persons to be given notice of a determination by the Ombudsman), at the end of paragraph (b) there shall be inserted "and

	(c) to every other person who was required under section 149 to be given an opportunity-
	(i) to comment on an allegation in the complaint or reference, or
	(ii) to make representations about matters to which the complaint or reference relates,".

(8) In subsection (3) of section 151 (persons bound by determinations), for "and" at the end of paragraph (b) there shall be substituted-

	"(ba) any person who under section 149 was given such an opportunity to make any such comment or representation as is mentioned in subsection (1)(c) of this section,
	(bb) any person whose interests were represented by a person falling within any of the preceding paragraphs, and";

and, in paragraph (c) of that subsection for "paragraph (a) or (b)" there shall be substituted "any of paragraphs (a) to (bb)".

(9) Nothing in any provision made by this section shall-

(a) apply in relation to any complaint or reference made to the Pensions Ombudsman before the day on which this section comes into force; or

(b) authorise the making of any provision applying in relation to any such complaint or reference.

Miscellaneous amendments and alternative to anti-franking rules.

43. Schedule 4 (which contains miscellaneous amendments of the Pension Schemes Act 1993 and the Pensions Act 1995 and makes provision for an alternative to the anti-franking rules in Part III of that Act of 1993) shall have effect.

Prepared 2 December 1999