|
| |
|
(3) | In the case of any unfair adoption leave provision— |
| |
(a) | the more favourable treatment required by paragraph 3(1) is |
| |
treatment no less favourable than would be accorded to the |
| |
member in accordance with the normal employment |
| |
| 5 |
(b) | paragraph 3(2) does not authorise the making of any such |
| |
election as is there mentioned; |
| |
| but, in respect of any period of paid adoption leave, a member shall |
| |
only be required to pay contributions on the amount of contractual |
| |
remuneration or statutory adoption pay actually paid to or for him |
| 10 |
in respect of that period. |
| |
| |
| “period of paid adoption leave”, in the case of a member, |
| |
| |
(a) | throughout which the member is absent from work |
| 15 |
in circumstances where sub-paragraph (5) or (6) |
| |
| |
(b) | for which the employer (or, if he is no longer in his |
| |
employment, his former employer) pays him any |
| |
contractual remuneration or statutory adoption pay; |
| 20 |
| |
| “the normal employment requirement” is the requirement that |
| |
any period of paid adoption leave shall be treated as if it |
| |
were a period throughout which the member in question |
| |
works normally and receives the remuneration likely to be |
| 25 |
| |
(5) | This sub-paragraph applies if— |
| |
(a) | the member’s absence from work is due to the placement, or |
| |
expected placement, of a child for adoption under the law of |
| |
any part of the United Kingdom, and |
| 30 |
(b) | the member is a person with whom the child is, or is expected |
| |
to be, placed for such adoption. |
| |
(6) | This sub-paragraph applies if— |
| |
(a) | the member’s absence from work is due to the adoption or |
| |
expected adoption of a child who has entered the United |
| 35 |
Kingdom in connection with or for the purposes of adoption |
| |
which does not involve the placement of the child for |
| |
adoption under the law of any part of the United Kingdom, |
| |
| |
(b) | the member is a person by whom the child has been or is |
| 40 |
| |
(2) | The provision that may be made under section 142(1) of the Adoption and |
| |
Children Act 2002 (c. 38) (power to make consequential etc provision to give |
| |
full effect to any provision of that Act) includes provision modifying |
| |
paragraph 5A or 5B of Schedule 5 to the Social Security Act 1989 (c. 24) (as |
| 45 |
inserted by subsection (1) above). |
| |
206 | Inalienability of occupational pension |
| |
(1) | Section 91 of the Pensions Act 1995 (c. 26) (inalienability of occupational |
| |
pension) is amended as follows. |
| |
|
| |
|
| |
|
(2) | In subsection (5) (exceptions to the rule of inalienability) at the end insert— |
| |
“(f) | subject to subsection (6), a charge or lien on, or set-off against, |
| |
the person in question’s entitlement, or right, for the purpose of |
| |
discharging some monetary obligation due from the person in |
| |
question to the scheme arising out of a payment made in error |
| 5 |
in respect of the pension.” |
| |
(3) | In subsection (6) (limits on the charge, lien or set-off under subsection (5)(d) or |
| |
(e)) for “or (e)” substitute “, (e) or (f)”. |
| |
| |
207 | Payments made by employers to personal pension schemes |
| 10 |
(1) | Section 111A of the Pension Schemes Act 1993 (c. 48) (monitoring of |
| |
employers’ payments to personal pension schemes) is amended as follows. |
| |
(2) | For subsections (3) to (7) substitute— |
| |
“(3) | The trustees or managers of the scheme must monitor the payment of |
| |
contributions by or on behalf of the employer under the direct payment |
| 15 |
| |
(4) | The trustees or managers may request the employer to provide them, |
| |
(or arrange for them to be provided) with the payment information |
| |
specified in the request. |
| |
(5) | For the purposes of subsection (4) “payment information” is |
| 20 |
information required by the trustees or managers to enable them to |
| |
discharge the duty imposed by subsection (3). |
| |
(6) | The employer must comply with a request under subsection (4) within |
| |
| |
(7) | Where, as a result of the employer’s failure to so comply, the trustees or |
| 25 |
managers are unable to discharge the duty imposed by subsection (3), |
| |
they must give notice to that effect to the Regulatory Authority within |
| |
| |
| |
(a) | a contribution payable under the direct payment arrangements |
| 30 |
has not been paid on or before its due date, and |
| |
(b) | the trustees or managers have reasonable cause to believe that |
| |
the failure to pay the contribution is likely to be of material |
| |
significance in the exercise by the Regulatory Authority of any |
| |
| 35 |
| they must give notice to that effect to the Regulatory Authority and the |
| |
employee within a reasonable period after the due date.” |
| |
(3) | In subsection (8) (employer’s liability for civil penalties) for “subsection (3) or |
| |
(5)” substitute “subsection (6) and as a result the trustees or managers of the |
| |
scheme are unable to discharge the duty imposed by subsection (3)”. |
| 40 |
(4) | In subsection (9) (liability of trustees or managers for civil penalties) for |
| |
“subsection (6) or (7)” substitute “subsection (7) or (7A)”. |
| |
|
| |
|
| |
|
208 | Payments made by employers and members to occupational pension schemes |
| |
(1) | In section 49 of the Pensions Act 1995 (c. 26) (other responsibilities of trustees, |
| |
employers, etc), in subsection (9) (duty of trustee etc to report a failure by |
| |
employer to pay contributions deducted from earnings on time) for paragraph |
| |
| 5 |
“(b) | if the trustees or managers have reasonable cause to believe that |
| |
the failure is likely to be of material significance in the exercise |
| |
by the Authority of any of their functions, they must, except in |
| |
prescribed circumstances, give notice of the failure to the |
| |
Authority and the member within a reasonable period after the |
| 10 |
end of the prescribed period under subsection (8).” |
| |
(2) | In section 88 of that Act (schedules of payments to money purchase schemes), |
| |
for subsection (1) (duty of trustees or managers to report a failure to pay |
| |
amounts on time) substitute— |
| |
“(1) | Where, in the case of an occupational pension scheme to which section |
| 15 |
| |
(a) | there is a failure to pay on or before the due date any amounts |
| |
payable in accordance with the payment schedule, and |
| |
(b) | the trustees or managers have reasonable cause to believe that |
| |
the failure is likely to be of material significance in the exercise |
| 20 |
by the Authority of any of their functions, |
| |
| they must, except in prescribed circumstances, give notice of the failure |
| |
to the Authority and to the members of the scheme within a reasonable |
| |
period after the due date.” |
| |
Deficiency in assets of certain occupational pension schemes |
| 25 |
209 | Debt due from the employer when assets insufficient |
| |
(1) | Section 75 of the Pensions Act 1995 (deficiencies in the assets) is amended as |
| |
| |
(2) | For subsections (1) to (4) substitute— |
| |
“(1) | This section applies in relation to an occupational pension scheme other |
| 30 |
| |
(a) | a money purchase scheme, or |
| |
(b) | of a prescribed description. |
| |
| |
(a) | at any time which falls— |
| 35 |
(i) | when a scheme is being wound up, but |
| |
(ii) | before any insolvency event in relation to the employer |
| |
which occurs while the scheme is being wound up, |
| |
| the value of the assets of the scheme is less than the amount at |
| |
that time of the liabilities of the scheme, and |
| 40 |
(b) | the trustees or managers of the scheme designate that time for |
| |
the purposes of this subsection (before the occurrence of an |
| |
event within paragraph (a)(ii)), |
| |
| an amount equal to the difference shall be treated as a debt due from |
| |
the employer to the trustees or managers of the scheme. |
| 45 |
|
| |
|
| |
|
| This is subject to subsection (3). |
| |
(3) | Subsection (2) applies only if before the commencement of the winding |
| |
| |
(a) | no insolvency event has occurred in relation to the employer, or |
| |
(b) | any such event has been followed by an event within subsection |
| 5 |
| |
| |
(a) | immediately before a qualifying insolvency event occurs in |
| |
relation to the employer the value of the assets of the scheme is |
| |
less than the amount at that time of the liabilities of the scheme, |
| 10 |
| |
(b) | if the scheme was being wound up immediately before that |
| |
event, subsection (2) has not applied in relation to the scheme to |
| |
treat an amount as a debt due from the employer to the trustees |
| |
or managers of the scheme, |
| 15 |
| an amount equal to the difference shall be treated as a debt due from |
| |
the employer to the trustees or managers of the scheme. |
| |
(4A) | A debt under subsection (4) is to be taken, for the purposes of the law |
| |
relating to insolvency as it applies to the employer, to arise |
| |
immediately before the occurrence of the qualifying insolvency event. |
| 20 |
(4B) | Where the scheme was not being wound up immediately before the |
| |
qualifying insolvency event, the debt due from the employer under |
| |
subsection (4) is contingent upon— |
| |
(a) | the occurrence, in relation to the scheme, of an event within |
| |
paragraph (a) of subsection (6A) in circumstances where that |
| 25 |
event is the first event within that subsection to occur after the |
| |
qualifying insolvency event, or |
| |
(b) | the commencement of the winding up of the scheme before any |
| |
event within subsection (6A) occurs.” |
| |
(3) | In subsection (5) for “subsection (1)” substitute “subsections (2) and (4)”. |
| 30 |
(4) | After subsection (6) insert— |
| |
“(6A) | The events within this subsection are— |
| |
(a) | the issuing of a notice under subsection (2) of section 96 of the |
| |
Pensions Act 2004 confirming that a scheme rescue is not |
| |
| 35 |
(b) | the issuing of such a notice confirming that a scheme rescue has |
| |
| |
(c) | the Board ceasing to be involved with the scheme by virtue of |
| |
an event within section 117(2)(c) of that Act (withdrawal where |
| |
no insolvency event likely to occur in six month period or |
| 40 |
expiry of six month period without further insolvency event |
| |
| |
(d) | if where an insolvency practitioner issues a notice under section |
| |
96(4) of that Act (confirmation of inability to confirm status of |
| |
scheme) section 117(4) of that Act (Board’s duty to consider |
| 45 |
whether to withdraw) does not apply, the issuing of that notice. |
| |
(6B) | For the purposes of this section— |
| |
|
| |
|
| |
|
(a) | section 95 of the Pensions Act 2004 applies for the purposes of |
| |
determining if and when an insolvency event has occurred in |
| |
relation to the employer, |
| |
(b) | an insolvency event (“the current event”) in relation to the |
| |
employer is a qualifying insolvency event if— |
| 5 |
(i) | it is the first insolvency event in relation to the |
| |
| |
(ii) | an event within subsection (6A)(b), (c) or (d) has |
| |
occurred in relation to the scheme since the date of the |
| |
last insolvency event (if any) to occur in relation to the |
| 10 |
employer before the current event, and |
| |
(c) | references to an insolvency event in relation to an employer do |
| |
not include an insolvency event which occurred in relation to |
| |
him before he became the employer in relation to the scheme.” |
| |
| 15 |
| |
210 | Resolution of disputes |
| |
For section 50 of the Pensions Act 1995 (c. 26) (resolution of disputes) |
| |
| |
“50 | Requirement for dispute resolution arrangements |
| 20 |
(1) | The trustees or managers of an occupational pension scheme must |
| |
secure that dispute resolution arrangements are made and |
| |
| |
(2) | Dispute resolution arrangements are such arrangements as are |
| |
required by this section for the resolution of pension disputes. |
| 25 |
(3) | For this purpose a pension dispute is a dispute which— |
| |
| |
(i) | the trustees or managers of a scheme, and |
| |
(ii) | one or more persons with an interest in the scheme (see |
| |
| 30 |
(b) | is about matters relating to the scheme, and |
| |
(c) | is not an exempted dispute (see subsection (9)). |
| |
(4) | The dispute resolution arrangements must provide a procedure— |
| |
(a) | for any of the parties to the dispute mentioned in subsection |
| |
(3)(a)(ii) to make an application for a decision to be taken on the |
| 35 |
matters in dispute (“an application for the resolution of a |
| |
| |
(b) | for the trustees or managers to take that decision. |
| |
(5) | Where an application for the resolution of a pension dispute is made in |
| |
accordance with the dispute resolution arrangements, the trustees or |
| 40 |
| |
(a) | take the decision required on the matters in dispute within a |
| |
reasonable period of the receipt of the application by them, and |
| |
(b) | notify the applicant of the decision within a reasonable period |
| |
| 45 |
|
| |
|
| |
|
(6) | The procedure provided for by the dispute resolution arrangements |
| |
must include the provision required by section 50B. |
| |
(7) | Dispute resolution arrangements under subsection (1) must, in the case |
| |
of existing schemes, have effect on and after the date of commencement |
| |
of this section in relation to applications made on or after that date. |
| 5 |
(8) | This section does not apply in relation to an occupational pension |
| |
| |
(a) | every member of the scheme is a trustee of the scheme, |
| |
(b) | the scheme has no more than one member, or |
| |
(c) | the scheme is of a prescribed description. |
| 10 |
(9) | For the purposes of this section a dispute is an exempted dispute if— |
| |
(a) | proceedings in respect of it have been commenced in any court |
| |
| |
(b) | the Pensions Ombudsman has commenced an investigation in |
| |
respect of it as a result of a complaint made or a dispute referred |
| 15 |
| |
(c) | it is of a prescribed description. |
| |
(10) | If, in the case of an occupational pension scheme, the dispute resolution |
| |
arrangements required by this section to be made— |
| |
(a) | have not been made, or |
| 20 |
(b) | are not being implemented, |
| |
| section 10 applies to any of the trustees or managers who have failed to |
| |
take all reasonable steps to secure that such arrangements are made or |
| |
| |
50A | Meaning of “person with an interest in the scheme” |
| 25 |
(1) | For the purposes of section 50 a person is a person with an interest in |
| |
an occupational pension scheme if— |
| |
(a) | he is a member of the scheme, |
| |
(b) | he is a widow, widower or surviving dependant of a deceased |
| |
| 30 |
(c) | he is a surviving non-dependant beneficiary of a deceased |
| |
| |
(d) | he is a prospective member of the scheme, |
| |
(e) | he has ceased to be within any of the categories of persons |
| |
referred to in paragraphs (a) to (d), or |
| 35 |
(f) | he claims to be such a person as is mentioned in paragraphs (a) |
| |
to (e) and the dispute relates to whether he is such a person. |
| |
(2) | In subsection (1)(c) a “non-dependant beneficiary”, in relation to a |
| |
deceased member of an occupational pension scheme, means a person |
| |
who, on the death of the member, is entitled to the payment of benefits |
| 40 |
| |
(3) | In subsection (1)(d) a “prospective member” means any person who, |
| |
under the terms of his contract of service or the rules of the scheme— |
| |
(a) | is able, at his own option, to become a member of the scheme, |
| |
(b) | will become so able if he continues in the same employment for |
| 45 |
a sufficiently long period, |
| |
|
| |
|
| |
|
(c) | will be admitted to the scheme automatically unless he makes |
| |
an election not to become a member, or |
| |
(d) | may be admitted to it subject to the consent of his employer. |
| |
50B | The dispute resolution procedure |
| |
(1) | The procedure provided for by the dispute resolution arrangements |
| 5 |
under section 50 must include the following provision. |
| |
(2) | The procedure must provide that an application for the resolution of a |
| |
pension dispute under section 50(4) may be made or continued on |
| |
behalf of a person who is a party to the dispute mentioned in section |
| |
| 10 |
(a) | where the person dies, by his personal representative, |
| |
(b) | where the person is a minor or is otherwise incapable of acting |
| |
for himself, by a member of his family or some other person |
| |
suitable to represent him, and |
| |
(c) | in any other case, by a representative nominated by him. |
| 15 |
(3) | The procedure may include provision about the time limits for making |
| |
an application for the resolution of a pension dispute but it must |
| |
| |
(a) | in the case of a person with an interest in a scheme as mentioned |
| |
in section 50A(1)(e), the time limit for making an application is |
| 20 |
the end of the period of six months beginning immediately after |
| |
the date upon which he ceased to be a person with an interest as |
| |
mentioned in section 50A(1)(a), (b), (c) or (d), and |
| |
(b) | in the case of a person with an interest in a scheme as mentioned |
| |
in section 50A(1)(f) who is claiming to be such a person as is |
| 25 |
mentioned in section 50A(1)(e), the time limit for making an |
| |
application is the end of the period of six months beginning |
| |
immediately after the date upon which he claims that he ceased |
| |
to be a person with an interest as mentioned in section |
| |
50A(1)(a), (b), (c) or (d). |
| 30 |
(4) | The procedure must include provision about— |
| |
(a) | the manner in which an application for the resolution of a |
| |
pension dispute is to be made, |
| |
(b) | the particulars which must be included in such an application, |
| |
| 35 |
(c) | the manner in which any decisions required are to be reached |
| |
| |
(5) | The procedure must provide that if, after an application for the |
| |
resolution of a pension dispute has been made, the dispute becomes an |
| |
exempted dispute within the meaning of section 50(9)(a) or (b), the |
| 40 |
resolution of the dispute under the procedure ceases.” |
| |
| |
211 | Amendments relating to the Pensions Compensation Board |
| |
(1) | The Pensions Act 1995 (c. 26) is amended as follows. |
| |
(2) | In section 80 (review of decisions of the Pensions Compensation Board)— |
| 45 |
|
| |
|