|
| |
|
(7) | The Secretary of State may by order amend subsection (4)(e) to make provision |
| |
consequential upon any order under section 420 of the Insolvency Act 1986 |
| |
(c. 45) (insolvent partnerships) applying the provisions of Part 2 of that Act |
| |
(administration) as amended by the Enterprise Act 2002 (c. 40). |
| |
(8) | “Insolvency date”, in relation to an insolvency event, means the date on which |
| 5 |
| |
(9) | “Insolvency practitioner”, in relation to a person, means— |
| |
(a) | a person acting as an insolvency practitioner, in relation to that person, |
| |
in accordance with section 388 of the Insolvency Act 1986, |
| |
(b) | in such circumstances as may be prescribed, a person of a prescribed |
| 10 |
| |
| |
| “company” means a company within the meaning given by section 735(1) |
| |
of the Companies Act 1985 (c. 6) or a company which may be wound up |
| |
under Part 5 of the Insolvency Act 1986 (unregistered companies); |
| 15 |
| “person acting as an insolvency practitioner”, in relation to a person, |
| |
includes the official receiver acting as receiver or manager of any |
| |
| |
(11) | In applying section 388 of the Insolvency Act 1986 under subsection (9) |
| |
| 20 |
(a) | the reference in section 388(2)(a) to a permanent or interim trustee in |
| |
sequestration must be taken to include a reference to a trustee in |
| |
| |
(b) | section 388(5) (which includes provision that nothing in the section |
| |
applies to anything done by the official receiver or the Accountant in |
| 25 |
Bankruptcy) must be ignored. |
| |
| |
96 | Insolvency practitioner’s duty to issue notices confirming status of scheme |
| |
(1) | This section applies where an insolvency event has occurred in relation to the |
| |
employer in relation to an occupational pension scheme |
| 30 |
(2) | If an insolvency practitioner in relation to the employer is able to confirm— |
| |
(a) | that a scheme rescue is not possible, or |
| |
(b) | that a scheme rescue has occurred, |
| |
| he must issue a notice to that effect. |
| |
(3) | Subsection (4) applies where— |
| 35 |
(a) | in prescribed circumstances, insolvency proceedings in relation to the |
| |
employer are stayed or come to an end, or |
| |
(b) | a prescribed event occurs. |
| |
(4) | If a person who was acting as an insolvency practitioner in relation to the |
| |
employer immediately before this subsection applies has not been able to |
| 40 |
confirm in relation to the scheme— |
| |
(a) | that a scheme rescue is not possible, or |
| |
(b) | that a scheme rescue has occurred, |
| |
| he must issue a notice to that effect. |
| |
|
| |
|
| |
|
(5) | For the purposes of this section— |
| |
(a) | a person is able to confirm that a scheme rescue has occurred in relation |
| |
to an occupational pension scheme if, and only if, he is able to confirm |
| |
such matters as are prescribed for the purposes of this paragraph, and |
| |
(b) | a person is able to confirm that a scheme rescue is not possible, in |
| 5 |
relation to such a scheme if, and only if, he is able to confirm such |
| |
matters as are prescribed for the purposes of this paragraph. |
| |
(6) | Where an insolvency practitioner or former insolvency practitioner in relation |
| |
to the employer issues a notice under this section, he must give a copy of that |
| |
| 10 |
| |
| |
(c) | the trustees or managers of the scheme. |
| |
(7) | A person must comply with an obligation imposed on him by subsection (2), |
| |
(4) or (6) as soon as reasonably practicable. |
| 15 |
| |
97 | Board’s duty where there is a failure to comply with section 96 |
| |
(1) | This section applies where, in relation to an occupational pension scheme, the |
| |
Board is satisfied that an insolvency practitioner, or former insolvency |
| |
practitioner, in relation to the employer has failed to issue a notice which he |
| 20 |
was required to issue under section 96. |
| |
(2) | The Board must issue a notice in the form in which it ought to have been issued. |
| |
(3) | Subject to subsections (4) and (5), a notice issued under subsection (2) has effect |
| |
as if it were a notice issued under section 96 by an insolvency practitioner or, |
| |
as the case may, former insolvency practitioner in relation to the employer. |
| 25 |
(4) | Where a notice is issued under subsection (2), section 96(6) does not apply and |
| |
the Board must, as soon as reasonably practicable, give a copy of the notice to— |
| |
| |
(b) | the trustees or managers of the scheme, and |
| |
(c) | any insolvency practitioner in relation to the employer, or if there is no |
| 30 |
such insolvency practitioner, the employer. |
| |
(5) | The issuing of a notice under subsection (2) does not have effect to prevent an |
| |
insolvency event in relation to the employer being a qualifying insolvency |
| |
event within the meaning of any provision of this Part or of section 75 of the |
| |
Pensions Act 1995 (c. 26) if— |
| 35 |
(a) | the event occurs after the failure mentioned in subsection (1), and |
| |
(b) | had the insolvency practitioner issued the required notice under |
| |
section 96, the event would have been a qualifying insolvency event for |
| |
| |
|
| |
|
| |
|
| |
| |
| |
| |
(1) | In this Part references to an “eligible scheme” are to an occupational pension |
| 5 |
| |
(a) | is not a money purchase scheme, and |
| |
(b) | is not a prescribed scheme or a scheme of a prescribed description. |
| |
(2) | A scheme is not an eligible scheme if it is being wound up immediately before |
| |
the day appointed by the Secretary of State by order for the purposes of this |
| 10 |
| |
Circumstances in which Board assumes responsibility for eligible schemes |
| |
99 | Duty to assume responsibility for schemes following insolvency event |
| |
(1) | This section applies where a qualifying insolvency event has occurred in |
| |
relation to the employer in relation to an eligible scheme. |
| 15 |
(2) | The Board must assume responsibility for the scheme in accordance with this |
| |
| |
(a) | the value of the assets of the scheme at the relevant time was less than |
| |
the amount of the protected liabilities at that time (see sections 103 and |
| |
| 20 |
(b) | after the relevant time an insolvency practitioner in relation to the |
| |
employer issues a notice under section 96 confirming that a scheme |
| |
rescue is not possible in relation to the scheme, and |
| |
(c) | the Board has not ceased to be involved with the scheme (see section |
| |
117) in the period beginning with the relevant time and ending with the |
| 25 |
| |
(3) | For the purposes of this section— |
| |
(a) | in relation to an eligible scheme, an insolvency event in relation to the |
| |
employer is a qualifying insolvency event if the event does not fall |
| |
within an assessment period (see section 104) in respect of the scheme |
| 30 |
which began before the event occurred, |
| |
(b) | the reference in subsection (2)(a) to the assets of the scheme is a |
| |
reference to those assets excluding any assets representing the value of |
| |
any rights in respect of money purchase benefits under the scheme, and |
| |
(c) | “the relevant time” means the time immediately before the qualifying |
| 35 |
| |
(4) | This section is subject to sections 115 and 116 (cases where Board must refuse |
| |
to assume responsibility for a scheme). |
| |
|
| |
|
| |
|
100 | Duty to assume responsibility for schemes following application or |
| |
| |
(1) | This section applies where, in relation to an eligible scheme, the trustees or |
| |
| |
(a) | make an application under subsection (1) of section 101 (a “section 101 |
| 5 |
| |
(b) | receive a notice from the Board under subsection (5)(a) of that section |
| |
(a “section 101 notification”). |
| |
(2) | The Board must assume responsibility for the scheme in accordance with this |
| |
| 10 |
(a) | the value of the assets of the scheme at the relevant time was less than |
| |
the amount of the protected liabilities at that time (see sections 103 and |
| |
| |
(b) | after the relevant time the Board issues a notice under section 102 |
| |
confirming that a scheme rescue is not possible in relation to the |
| 15 |
| |
(c) | the Board has not ceased to be involved with the scheme (see section |
| |
117) in the period beginning with the relevant time and ending with the |
| |
| |
| 20 |
(a) | the reference in paragraph (a) to the assets of the scheme is a reference |
| |
to those assets excluding any assets representing the value of any rights |
| |
in respect of money purchase benefits under the scheme, and |
| |
(b) | “the relevant time” means the time immediately before the section 101 |
| |
application was made or, as the case may be, the section 101 notification |
| 25 |
| |
(4) | An application under section 101(1) or notification under section 101(5)(a) is to |
| |
be disregarded for the purposes of subsection (1) if it is made or given during |
| |
an assessment period (see section 104) in respect of the scheme which began |
| |
before the application was made or notification was given. |
| 30 |
(5) | This section is subject to sections 115 and 116 (cases where Board must refuse |
| |
to assume responsibility for a scheme). |
| |
101 | Applications and notifications for the purposes of section 100 |
| |
(1) | The trustees or managers of an eligible scheme must make an application to the |
| |
Board for it to assume responsibility for the scheme under section 100 if it |
| 35 |
| |
(a) | the employer in relation to the scheme is unlikely to continue as a going |
| |
| |
(b) | the prescribed requirements are met in relation to the employer. |
| |
(2) | Where the Board receives an application under subsection (1), it must give a |
| 40 |
copy of the application to— |
| |
| |
| |
(3) | An application under subsection (1) must— |
| |
(a) | be in the prescribed form and contain the prescribed information, and |
| 45 |
(b) | be made within the prescribed period. |
| |
|
| |
|
| |
|
(4) | Where the Regulator becomes aware that— |
| |
(a) | the employer in relation to an eligible scheme is unlikely to continue as |
| |
| |
(b) | the requirements mentioned in subsection (1)(b) are met in relation to |
| |
| 5 |
| it must give the Board a notice to that effect. |
| |
(5) | Where the Board receives a notice under subsection (4), it must— |
| |
(a) | give the trustees or managers of the scheme a notice to that effect, and |
| |
(b) | give the employer a copy of that notice. |
| |
(6) | Regulations may require notices under this section to be in the prescribed form |
| 10 |
and contain the prescribed information. |
| |
102 | Board’s duty where application or notification received under section 101 |
| |
(1) | This section applies where the Board— |
| |
(a) | receives an application under subsection (1) of section 101 and is |
| |
satisfied that paragraph (a) and (b) of that subsection are satisfied in |
| 15 |
relation to the application, or |
| |
(b) | is notified by the Regulator under section 101(4). |
| |
(2) | If the Board is able to confirm that a scheme rescue is not possible, it must as |
| |
soon as reasonably practicable issue a notice to that effect. |
| |
(3) | If the Board is able to confirm that a scheme rescue has occurred, it must as |
| 20 |
soon as reasonably practicable issue a withdrawal notice. |
| |
(4) | The Board must, as soon as reasonably practicable, give a copy of any notice |
| |
issued under subsection (2) or (3) to— |
| |
| |
(b) | the trustees or managers of the scheme, and |
| 25 |
| |
(5) | For the purposes of this section— |
| |
(a) | the Board is able to confirm that a scheme rescue has occurred in |
| |
relation to an occupational pension scheme if, and only if, it is able to |
| |
confirm such matters as are prescribed for the purposes of this |
| 30 |
| |
(b) | the Board is able to confirm that a scheme rescue is not possible in |
| |
relation to such a scheme if, and only if, it is able to confirm such |
| |
matters as are prescribed for the purposes of this paragraph. |
| |
(6) | In this section “withdrawal notice” means a notice in the prescribed form |
| 35 |
| |
(a) | states the time from which the Board ceases to be involved with the |
| |
| |
(b) | contains such other information as may be prescribed. |
| |
103 | Protected liabilities |
| 40 |
(1) | For the purposes of this Chapter the protected liabilities, in relation to an |
| |
eligible scheme, at a particular time (“the relevant time”) are— |
| |
(a) | the cost of securing benefits for and in respect of members of the |
| |
scheme which are equivalent to the compensation which would be |
| |
|
| |
|
| |
|
payable, in relation to the scheme, in accordance with the pension |
| |
compensation provisions (see section 124) if the Board assumed |
| |
responsibility for the scheme under this Chapter, |
| |
(b) | liabilities of the scheme which are not liabilities to, or in respect of, its |
| |
| 5 |
(c) | the estimated cost of winding up the scheme. |
| |
(2) | For the purposes of determining the cost of securing benefits within subsection |
| |
(1)(a), references in Schedule 7 ((pension compensation provisions) to the |
| |
assessment date are to be read as references to the day on which the relevant |
| |
| 10 |
Restrictions on schemes during the assessment period |
| |
| |
(1) | In this Part references to an assessment period are to be construed in |
| |
accordance with this section. |
| |
(2) | Where, in relation to an eligible scheme, a qualifying insolvency event occurs |
| 15 |
in relation to the employer, an assessment period— |
| |
(a) | begins with the occurrence of that event, and |
| |
| |
(i) | the Board ceases to be involved with the scheme (see section |
| |
| 20 |
(ii) | the trustees or managers of the scheme receive a transfer notice |
| |
| |
(iii) | the winding up of the scheme is completed, |
| |
| |
(3) | For the purposes of subsection (2) an insolvency event in relation to the |
| 25 |
employer is a qualifying insolvency event if it does not fall within an |
| |
assessment period in respect of the scheme which began before that event. |
| |
(4) | Where, in relation to an eligible scheme, an application is made under section |
| |
101(1) or a notification is received under section 101(5)(a), an assessment |
| |
| 30 |
(a) | begins when the application is made or the notification is received, and |
| |
| |
(i) | the Board ceases to be involved with the scheme (see section |
| |
| |
(ii) | the trustees or managers of the scheme receive a transfer notice |
| 35 |
| |
(iii) | the winding up of the scheme is completed, |
| |
| |
(5) | For the purposes of subsection (4) an application under section 101(1) or |
| |
notification under section 127(5)(a) is to be disregarded if it is made or given |
| 40 |
during an assessment period in respect of the scheme which began before the |
| |
application was made or notification was given. |
| |
|
| |
|