|
| |
|
21 | Consequences of freezing order |
| |
(1) | If a freezing order is made in relation to a scheme any action taken in |
| |
contravention of the order is void except to the extent that the action is |
| |
validated by an order under section 23. |
| |
(2) | A freezing order in relation to a scheme does not prevent any increase in a |
| 5 |
benefit which is an increase which would otherwise accrue in accordance with |
| |
the scheme or any enactment during the period for which the order has effect, |
| |
unless the order contains a direction to the contrary. |
| |
(3) | A freezing order in relation to a scheme does not prevent the scheme being |
| |
wound up in pursuance of an order under section 11 of the Pensions Act 1995 |
| 10 |
(c. 26) (power to wind up occupational pension schemes). |
| |
(4) | If a freezing order contains a direction under section 20(4)(b) that no further |
| |
contributions, or no further specified contributions, are to be paid towards a |
| |
scheme during the period for which the order has effect— |
| |
(a) | any contributions which are the subject of the direction and which |
| 15 |
would otherwise be due to be paid towards the scheme during that |
| |
period are to be treated as if they do not fall due, and |
| |
(b) | any obligation to pay those contributions (including any obligation |
| |
under section 49(8) of the Pensions Act 1995 to pay amounts deducted |
| |
corresponding to such contributions) is to be treated as if it does not |
| 20 |
| |
(5) | If a freezing order contains a direction under section 20(4)(f) (no transfers of |
| |
member’s rights etc from the scheme) it does not prevent giving effect to— |
| |
(a) | a pension sharing order or provision, or |
| |
(b) | a pension earmarking order. |
| 25 |
(6) | For the purposes of subsection (5)— |
| |
| “pension sharing order or provision” means an order or provision falling |
| |
within section 28(1) of the Welfare Reform and Pensions Act 1999 (c. 30) |
| |
(activation of pension sharing); |
| |
| “pension earmarking order” means— |
| 30 |
(a) | an order under section 23 of the Matrimonial Causes Act 1973 |
| |
(c. 18) (financial provision orders in connection with divorce |
| |
etc) so far as it includes provision made by virtue of section 25B |
| |
or 25C of that Act (powers to include provision about pensions), |
| |
(b) | an order under section 12A(2) or (3) of the Family Law |
| 35 |
(Scotland) Act 1985 (c. 37) (powers in relation to pension lump |
| |
sums when making a capital sum order), or |
| |
(c) | an order under Article 25 of the Matrimonial Causes (Northern |
| |
Ireland) Order 1978 (S.I. 1978/1045 (N.I.15)) so far as it includes |
| |
provision made by virtue of Article 27B or 27C of that Order |
| 40 |
(Northern Ireland powers corresponding to those mentioned in |
| |
| |
(7) | Regulations may modify any provisions of Chapter 4 of Part 4 of the Pension |
| |
Schemes Act 1993 (c. 48) (protection for early leavers: transfer values) in their |
| |
application to an occupational pension scheme in relation to which a freezing |
| 45 |
order is made containing a direction under section 20(4)(f) (no transfers of |
| |
member’s rights etc from the scheme). |
| |
|
| |
|
| |
|
(8) | Disregarding subsection (1), if a freezing order made in relation to a scheme is |
| |
not complied with, section 10 of the Pensions Act 1995 (c. 26) (civil penalties) |
| |
applies to any trustee or manager of the scheme who has failed to take all |
| |
reasonable steps to secure compliance. |
| |
(9) | Subsection (8) does not apply in the case of non-compliance with a direction |
| 5 |
under section 20(4)(c) (direction that certain deducted contributions are to be |
| |
| |
(10) | In such a case, section 10 of the Pensions Act 1995 (civil penalties) applies to an |
| |
employer who, without reasonable excuse, fails to repay an amount as |
| |
required by the direction. |
| 10 |
22 | Period of effect etc of freezing order |
| |
(1) | A freezing order must specify the period for which it has effect. |
| |
(2) | The period specified must not exceed three months. |
| |
(3) | The Regulator may on one or more occasions by order extend the period for |
| |
which the order has effect. |
| 15 |
(4) | But the total period for which the order has effect must not exceed six months. |
| |
(5) | This section is subject to sections 24, 25 and 26 (effect of winding up and |
| |
assessment period on freezing orders). |
| |
23 | Validation of action in contravention of freezing order |
| |
(1) | If a freezing order is made in relation to a scheme, the Regulator may by order |
| 20 |
validate action taken in contravention of the order. |
| |
(2) | Any of the following persons may apply to the Regulator for an order under |
| |
this section validating particular action— |
| |
(a) | the trustees or managers of the scheme; |
| |
(b) | any person directly affected by the action. |
| 25 |
24 | Effect of determination to wind up scheme on freezing order |
| |
(1) | This section applies where— |
| |
(a) | the Regulator determines to make an order under section 11 of the |
| |
Pensions Act 1995 (power to wind up occupational pension schemes) in |
| |
relation to a scheme (“a winding up order”), |
| 30 |
(b) | that determination is made during the period for which a freezing |
| |
order has effect in relation to the scheme, |
| |
(c) | the case is not one to which the special procedure in section 87 applies |
| |
(immediate exercise of powers where immediate risk to assets etc), and |
| |
(d) | the winding up order accordingly cannot be made until the expiry of |
| 35 |
the period specified in section 85(4) (no exercise during period of |
| |
referral to the Tribunal etc). |
| |
(2) | In such a case the freezing order is to continue to have effect until— |
| |
(a) | where the winding up order is made, it ceases to have effect under |
| |
section 25 from the time when that order is made, or |
| 40 |
(b) | the determination to make the winding up order is revoked. |
| |
|
| |
|
| |
|
(3) | Subsection (2) is subject to the Regulator’s power under section 90 to revoke |
| |
the freezing order at any time. |
| |
25 | Effect of winding up order on freezing order |
| |
(1) | This section applies where— |
| |
(a) | an order is made under section 11 of the Pensions Act 1995 (c. 26) (“the |
| 5 |
1995 Act”) (power to wind up occupational pension schemes) in |
| |
relation to a scheme, and |
| |
(b) | the order is made during the period for which a freezing order has |
| |
effect in relation to the scheme. |
| |
| 10 |
(a) | the winding up of the scheme in pursuance of the order under section |
| |
11 of the 1995 Act is to be taken as beginning at the time when the |
| |
freezing order took effect, and |
| |
(b) | the freezing order ceases to have effect from the time when the order |
| |
under section 11 of the 1995 Act is made. |
| 15 |
(3) | The Regulator may by order direct any specified person— |
| |
(a) | to take such specified steps as it considers are necessary as a result of |
| |
the winding up of the scheme being deemed under subsection (2)(a) to |
| |
have begun at the time when the freezing order took effect, and |
| |
(b) | to take those steps within a specified period. |
| 20 |
(4) | If the trustees or managers of a scheme fail to comply with a direction to them |
| |
contained in an order under this section, section 10 of the 1995 Act (civil |
| |
penalties) applies to any trustee or manager who has failed to take all |
| |
reasonable steps to secure compliance. |
| |
(5) | That section also applies to any other person who, without reasonable excuse, |
| 25 |
fails to comply with a direction to him contained in an order under this section. |
| |
(6) | In this section “specified” means specified in an order under this section. |
| |
26 | Effect of assessment period under Part 2 on freezing order |
| |
Where an assessment period (within the meaning of section 119) begins in |
| |
relation to a scheme, any freezing order in relation to the scheme ceases to have |
| 30 |
effect when the assessment period begins. |
| |
27 | Power to give a direction where freezing order ceases to have effect |
| |
(1) | This section applies where— |
| |
(a) | the Regulator revokes a freezing order in relation to a scheme or it |
| |
otherwise ceases to have effect, and |
| 35 |
(b) | at the time when the freezing order ceases to have effect, the Regulator |
| |
has not made an order under section 11 of the Pensions Act 1995 (“the |
| |
1995 Act”) in relation to the scheme. |
| |
(2) | In such a case the Regulator may make an order under this section in relation |
| |
to the scheme containing a direction that, if specified conditions are met, |
| 40 |
specified benefits are to accrue under the scheme to, or in respect of, specified |
| |
members of the scheme in respect of specified periods of service being service |
| |
|
| |
|
| |
|
in employment which but for the freezing order would have qualified the |
| |
member in question for those benefits under the scheme. |
| |
(3) | The conditions mentioned in subsection (2) may include— |
| |
(a) | a requirement that specified benefits do not accrue to, or in respect of, |
| |
a member or a specified member unless a contribution of a specified |
| 5 |
amount is paid by or on behalf of the member towards the scheme |
| |
within a specified period; |
| |
(b) | a requirement that a contribution of a specified amount must be paid |
| |
by or on behalf of the employer within a specified period; |
| |
(c) | a requirement that such contributions as are specified under paragraph |
| 10 |
(a) or (b) are to be accepted for the period for which the freezing order |
| |
had effect or any part of that period. |
| |
(4) | Where the freezing order contained a direction under section 20(4)(d) or (e) |
| |
and any amount of any benefit under the scheme was not paid as a result of the |
| |
| 15 |
(a) | the direction does not affect any entitlement to that benefit, and |
| |
(b) | any benefit to which a member, or a person in respect of a member, |
| |
remains entitled at the end of the period for which the freezing order |
| |
had effect is an amount which falls due to the member or, as the case |
| |
may be, the person at the end of that period. |
| 20 |
(5) | If an order made under this section in relation to a scheme is not complied with, |
| |
section 10 of the 1995 Act (civil penalties) applies to a trustee or a manager of |
| |
the scheme who has failed to take all reasonable steps to secure compliance. |
| |
(6) | Subsection (7) applies if— |
| |
(a) | an order is made under this section in relation to a scheme, |
| 25 |
(b) | the order contains a requirement as described in subsection (3)(b) that |
| |
a contribution of a specified amount must be paid by or on behalf of the |
| |
employer within a specified period, and |
| |
(c) | the contribution is not paid within that period. |
| |
| 30 |
(a) | section 10 of the 1995 Act applies to the employer if he has failed, |
| |
without reasonable excuse, to secure compliance, |
| |
(b) | the amount which for the time being remains unpaid after the end of |
| |
the specified period is to be treated as a debt due from the employer to |
| |
the trustees or managers of the scheme, and |
| 35 |
(c) | except in prescribed circumstances, the trustees or managers must, |
| |
within a prescribed period, give notice of the failure to pay to the |
| |
Regulator and to the member. |
| |
(8) | If in any case subsection (7)(c) is not complied with, section 10 of the 1995 Act |
| |
applies to any trustee or manager who has failed to take all reasonable steps to |
| 40 |
| |
(9) | In this section “specified” means specified in an order under this section. |
| |
28 | Notification of trustees, managers, employers and members |
| |
(1) | This section applies where— |
| |
(a) | a freezing order is made in relation to a scheme, |
| 45 |
|
| |
|
| |
|
(b) | an order is made under section 23 validating action taken in |
| |
contravention of a freezing order made in relation to a scheme, |
| |
(c) | an order is made under section 25 directing specified steps to be taken |
| |
following the winding up of a scheme, or |
| |
(d) | an order is made under section 27 in relation to a scheme where a |
| 5 |
freezing order ceases to have effect. |
| |
(2) | The Regulator must, as soon as reasonably practicable after the order has been |
| |
| |
(a) | the trustees or managers of the scheme, and |
| |
(b) | the employer in relation to the scheme, |
| 10 |
| of the fact that the order has been made and of its effect. |
| |
(3) | The Regulator may by order direct the trustees or managers of the scheme to |
| |
| |
(a) | all the members of the scheme, or |
| |
(b) | the members of the scheme specified in the order, |
| 15 |
| of the fact that the order mentioned in subsection (1) has been made and of its |
| |
| |
(4) | Notification is to be within the period and in the manner specified in the order |
| |
| |
(5) | If the trustees or managers of a scheme fail to comply with a direction to them |
| 20 |
contained in an order made under subsection (3), section 10 of the Pensions Act |
| |
1995 (c. 26) (civil penalties) applies to any trustee or manager who has failed to |
| |
take all reasonable steps to secure compliance. |
| |
29 | Supplementary provision relating to orders under sections 20 to 28 |
| |
(1) | An order may be made in relation to a scheme under any of sections 20, 22, 23, |
| 25 |
| |
(a) | in spite of any enactment or rule of law, or any rule of the scheme, |
| |
which would otherwise operate to prevent the order being made, and |
| |
(b) | without regard to any such enactment, rule of law or rule of the scheme |
| |
as would otherwise require, or might otherwise be taken to require, the |
| 30 |
implementation of any procedure or the obtaining of any consent, with |
| |
a view to the making of the order. |
| |
(2) | Subsection (1) does not have effect to authorise the Regulator to make an order |
| |
as mentioned in that subsection if its doing so would be unlawful as a result of |
| |
section 6(1) of the Human Rights Act 1998 (c. 42) (unlawful for public authority |
| 35 |
to act in contravention of a Convention right). |
| |
Trustees of occupational pension schemes |
| |
| |
For section 3 of the Pensions Act 1995 (prohibition orders) substitute— |
| |
| 40 |
(1) | The Authority may by order prohibit a person from being a trustee of — |
| |
(a) | a particular trust scheme, |
| |
(b) | a particular description of trust schemes, or |
| |
|
| |
|
| |
|
(c) | trust schemes in general, |
| |
| if they are satisfied that he is not a fit and proper person to be a trustee |
| |
of the scheme or schemes to which the order relates. |
| |
(2) | Where a prohibition order is made under subsection (1) against a |
| |
person in respect of one or more schemes of which he is a trustee, the |
| 5 |
order has the effect of removing him. |
| |
(3) | The Authority may, on the application of any person prohibited under |
| |
this section, by order revoke the order either generally or in relation to |
| |
a particular scheme or description of schemes. |
| |
(4) | An application under subsection (3) may not be made— |
| 10 |
(a) | during the period within which the determination to exercise |
| |
the power to make the prohibition order may be referred to the |
| |
Tribunal under section 85(3) or 88(7) of the Pensions Act 2004, |
| |
| |
(b) | if the determination is so referred, until the reference, and any |
| 15 |
appeal against the Tribunal’s determination, has been finally |
| |
| |
(5) | A revocation made at any time under this section cannot affect |
| |
anything done before that time. |
| |
(6) | The Authority must prepare and publish a statement of the policies |
| 20 |
they intend to adopt in relation to the exercise of their powers under |
| |
| |
(7) | The Authority may revise any statement published under subsection |
| |
(6) and must publish any revised statement. |
| |
(8) | In this section “the Tribunal” means the Pensions Regulator Tribunal |
| 25 |
established under section 91 of the Pensions Act 2004.” |
| |
| |
In section 4 of the Pensions Act 1995 (c. 26) (suspension orders)— |
| |
(a) | after subsection (1)(a) insert— |
| |
“(aa) | pending consideration being given to the institution of |
| 30 |
proceedings against him for an offence involving |
| |
dishonesty or deception,”, |
| |
| |
(i) | in paragraph (a) after “paragraph (a)” insert “or (aa)”, |
| |
(ii) | after “effect” insert “in relation to a trust scheme”, and |
| 35 |
(iii) | after “section 3(1)” insert “in relation to that scheme”, |
| |
(c) | after subsection (5) insert— |
| |
“(5A) | An application under subsection (5) may not be made— |
| |
(a) | during the period within which the determination to |
| |
exercise the power to make an order under subsection |
| 40 |
(1) may be referred to the Tribunal under section 85(3) or |
| |
88(7) of the Pensions Act 2004, and |
| |
(b) | if the determination is so referred, until the reference, |
| |
and any appeal against the Tribunal’s determination, |
| |
has been finally disposed of.”, and |
| 45 |
|
| |
|
| |
|
(d) | After subsection (6) insert— |
| |
“(7) | In this section “the Tribunal” means the Pensions Regulator |
| |
Tribunal established under section 91 of the Pensions Act 2004.” |
| |
32 | Appointments by Regulator |
| |
(1) | In section 7 of the Pensions Act 1995 (c. 26) (appointment of trustees)— |
| 5 |
(a) | omit subsection (4), and |
| |
(b) | after subsection (5) insert— |
| |
“(5A) | An application may be made to the Regulator in relation to a |
| |
| |
(a) | the trustees of the scheme, |
| 10 |
| |
(c) | any member of the scheme, |
| |
| for the appointment of a trustee of the scheme under subsection |
| |
| |
(2) | In section 8 of that Act (consequences of appointment of trustees under section |
| 15 |
7), for subsections (1) and (2) substitute— |
| |
“(1) | An order under section 7 appointing a trustee may provide for any fees |
| |
and expenses of trustees appointed under the order to be paid— |
| |
| |
(b) | out of the resources of the scheme, or |
| 20 |
(c) | partly by the employer and partly out of those resources. |
| |
(2) | Such an order may also provide that an amount equal to the amount (if |
| |
any) paid out of the resources of the scheme by virtue of subsection |
| |
(1)(b) or (c) is to be treated for all purposes as a debt due from the |
| |
employer to the trustees of the scheme.” |
| 25 |
| |
(1) | Part 1 of the Pensions Act 1995 (occupational pension schemes) is amended as |
| |
| |
(2) | In section 22 (circumstances in which provisions relating to independent |
| |
| 30 |
(a) | in subsection (1)(b) omit “or” at the end of sub-paragraph (i) and after |
| |
that sub-paragraph insert— |
| |
“(ia) | the interim receiver of the property of a person |
| |
who is the employer in relation to the scheme, |
| |
| 35 |
(b) | in subsection (2), after “a scheme” insert “by virtue of subsection (1)”, |
| |
(c) | after subsection (2) insert— |
| |
“(2A) | To the extent that it does not already apply by virtue of |
| |
subsection (1), this section also applies in relation to a trust |
| |
| 40 |
(a) | at any time during an assessment period (within the |
| |
meaning of section 119 of the Pensions Act 2004) in |
| |
relation to the scheme, and |
| |
|
| |
|