|
| |
|
| “stakeholder pension scheme” and “work-based pension scheme” have |
| |
the same meaning as in section 5 (Regulator’s objectives). |
| |
New powers in respect of ocupational and personal pension schemes |
| |
| |
(1) | If the Regulator is of the opinion that a person— |
| 5 |
(a) | is contravening one or more provisions of the pensions legislation, or |
| |
(b) | has contravened one or more of those provisions in circumstances that |
| |
make it likely that the contravention will continue or be repeated, |
| |
| it may issue a notice (an “improvement notice”) to that person directing him to |
| |
take such steps as are specified in the notice to remedy or prevent a recurrence |
| 10 |
| |
(2) | An improvement notice must— |
| |
(a) | state that the Regulator is of that opinion and specify the provision or |
| |
provisions of the pensions legislation in question, |
| |
(b) | contain a statement of the matters which it is asserted constitute the |
| 15 |
contravention and of the evidence on which that opinion is based, and |
| |
(c) | in respect of each step specified in the notice, state the period (being a |
| |
period of not less than 21 days beginning with the date of the notice) |
| |
within which it must be complied with. |
| |
(3) | Directions in an improvement notice— |
| 20 |
(a) | may be framed to any extent by reference to a code of practice issued |
| |
by the Regulator under section 79, and |
| |
(b) | may be framed so as to afford the person to whom the notice is issued |
| |
a choice between different ways of remedying or preventing the |
| |
recurrence of the contravention. |
| 25 |
(4) | Directions in an improvement notice may be expressed to be conditional on |
| |
compliance by a third party with a specified direction, or specified directions, |
| |
contained in a notice under section 15 (third party notices). |
| |
(5) | An improvement notice may direct the person to whom it is issued to inform |
| |
the Regulator, within such period as may be specified in the notice, of the steps |
| 30 |
that he has taken, or is taking, in pursuance of the notice. |
| |
(6) | Where a contravention of a provision of the pensions legislation consists of a |
| |
failure to take action within a time limit, for the purposes of this section the |
| |
contravention continues until such time as the action is taken. |
| |
(7) | In this section “pensions legislation” means any enactment contained in or |
| 35 |
| |
(a) | the Pension Schemes Act 1993 (c. 48), |
| |
(b) | Part 1 of the Pensions Act 1995 (c. 26), other than sections 62 to 66A of |
| |
that Act (equal treatment), |
| |
(c) | Part 1 or section 33 of the Welfare Reform and Pensions Act 1999 (c. 30), |
| 40 |
| |
| |
(8) | If the trustees or managers of an occupational or personal pension scheme fail |
| |
to comply with an improvement notice issued to them, section 10 of the |
| |
|
| |
|
| |
|
Pensions Act 1995 (civil penalties) applies to any trustee or manager who has |
| |
failed to take all reasonable steps to secure compliance. |
| |
(9) | That section also applies to any other person who, without reasonable excuse, |
| |
fails to comply with an improvement notice issued to him. |
| |
| 5 |
(1) | Where the Regulator is of the opinion that— |
| |
| |
(i) | is contravening one or more provisions of the pensions |
| |
| |
(ii) | has contravened one or more of those provisions in |
| 10 |
circumstances that make it likely that the contravention will |
| |
| |
(b) | the contravention is or was, wholly or partly, a result of a failure of |
| |
another person (“the third party”) to do any thing, and |
| |
(c) | that failure is not itself a contravention of the pensions legislation, |
| 15 |
| the Regulator may issue a notice (a “third party notice”) directing the third |
| |
party to take such steps as are specified in the notice to remedy or prevent a |
| |
recurrence of his failure. |
| |
(2) | A third party notice must— |
| |
(a) | state that the Regulator is of that opinion and specify the provision or |
| 20 |
provisions of the pensions legislation in question, |
| |
(b) | contain a statement of— |
| |
(i) | the matters which it is asserted constitute the contravention of |
| |
the provision or provisions, and |
| |
(ii) | the matters which it is asserted constitute the failure by the third |
| 25 |
| |
| and the evidence on which that opinion is based, and |
| |
(c) | in respect of each step specified in the notice, state the period (being a |
| |
period of not less than 21 days beginning with the date of the notice) |
| |
within which it must be complied with. |
| 30 |
(3) | Directions in a third party notice may be framed so as to afford the third party |
| |
a choice between different ways of remedying or preventing the recurrence of |
| |
| |
(4) | A third party notice may direct the third party to inform the Regulator, within |
| |
such period as may be specified in the notice, of the steps that he has taken, or |
| 35 |
is taking, in pursuance of the notice. |
| |
(5) | Where a contravention of a provision of the pensions legislation consists of a |
| |
failure to take action within a time limit, for the purposes of this section the |
| |
contravention continues until such time as the action is taken. |
| |
(6) | Section 10 of the Pensions Act 1995 (c. 26) (civil penalties) applies to a person |
| 40 |
who, without reasonable excuse, fails to comply with a third party notice |
| |
| |
(7) | No duty to which a person is subject is to be regarded as contravened merely |
| |
because of anything required to be done in compliance with a third party |
| |
| 45 |
| This is subject to section 268 (protected items). |
| |
|
| |
|
| |
|
(8) | In this section “pensions legislation” has the same meaning as in section 14. |
| |
16 | Injunctions and interdicts |
| |
(1) | If, on the application of the Regulator, the court is satisfied that— |
| |
(a) | there is a reasonable likelihood that a particular person will do any act |
| |
which constitutes a misuse or misappropriation of any of the assets of |
| 5 |
an occupational or personal pension scheme, or |
| |
(b) | a particular person has done any such act and there is a reasonable |
| |
likelihood that he will continue or repeat the act in question or do a |
| |
| |
| the court may grant an injunction restraining him from doing so or, in |
| 10 |
Scotland, an interdict prohibiting him from doing so. |
| |
(2) | The jurisdiction conferred by this section is exercisable by the High Court or |
| |
| |
| |
(1) | If, on the application of the Regulator, the court is satisfied that there has been |
| 15 |
a misuse or misappropriation of any of the assets of an occupational or |
| |
personal pension scheme, it may order any person involved to take such steps |
| |
as the court may direct for restoring the parties to the position in which they |
| |
were before the misuse or misappropriation occurred. |
| |
(2) | For this purpose a person is “involved” if he appears to the court to have been |
| 20 |
knowingly concerned in the misuse or misappropriation of the assets. |
| |
(3) | The jurisdiction conferred by this section is exercisable by the High Court or |
| |
| |
18 | Power of the Regulator to recover unpaid contributions |
| |
(1) | Where any employer contribution payable towards an occupational or |
| 25 |
personal pension scheme is not paid on or before its due date, the Regulator |
| |
may, on behalf of the trustees or managers of the scheme, exercise such powers |
| |
as the trustees or managers have to recover that contribution. |
| |
(2) | For the purposes of subsection (1), any employer contribution payable towards |
| |
a personal pension scheme which is not paid on or before its due date is, if not |
| 30 |
a debt due from the employer to the trustees or managers apart from this |
| |
subsection, to be treated as if it were such a debt. |
| |
| |
| |
(a) | in relation to employer contributions payable towards an |
| 35 |
occupational pension scheme in accordance with a schedule of |
| |
contributions under section 208, has the same meaning as in |
| |
| |
(b) | in relation to employer contributions payable in accordance |
| |
with a payment schedule under section 87 of the Pensions Act |
| 40 |
1995 (c. 26) (schedules of payments to money purchase |
| |
schemes), has the meaning given in subsection (2)(c) of that |
| |
| |
|
| |
|
| |
|
(c) | in relation to employer contributions payable towards a |
| |
personal pension scheme, has the same meaning as in section |
| |
111A of the Pension Schemes Act 1993 (c. 48) (monitoring of |
| |
employer payments to personal pension schemes); |
| |
| 5 |
(a) | in relation to an occupational pension scheme, means any |
| |
contribution payable by or on behalf of the employer towards |
| |
the scheme in accordance with a schedule of contributions |
| |
under section 208 of this Act or a payment schedule under |
| |
section 87 of the Pensions Act 1995 (c. 26) (schedules of |
| 10 |
payments to money purchase schemes) whether— |
| |
(i) | on the employer’s own account (but in respect of one or |
| |
| |
(ii) | on behalf of an employee out of deductions from the |
| |
| 15 |
(b) | in relation to a personal pension scheme, means any |
| |
contribution payable towards the scheme under direct payment |
| |
| |
Powers in relation to winding up of occupational pension schemes |
| |
19 | Powers to wind up occupational pension schemes |
| 20 |
In section 11 of the Pensions Act 1995 (powers to wind up occupational pension |
| |
| |
| |
(b) | before subsection (4) insert— |
| |
“(3A) | The Authority may, during an assessment period (within the |
| 25 |
meaning of section 119 of the Pensions Act 2004 (meaning of |
| |
“assessment period” for the purposes of Part 2 of that Act)) in |
| |
relation to an occupational pension scheme, by order direct the |
| |
scheme to be wound up if they are satisfied that it is necessary |
| |
| 30 |
(a) | to ensure that the scheme’s protected liabilities do not |
| |
| |
(b) | if those liabilities do exceed its assets, to keep the excess |
| |
| |
| 35 |
(a) | “protected liabilities” has the meaning given in section |
| |
118 of the Pensions Act 2004, and |
| |
(b) | references to the assets of the scheme are references to |
| |
those assets excluding any assets representing the value |
| |
of any rights in respect of money purchase benefits |
| 40 |
(within the meaning of that Act) under the scheme.”, |
| |
(c) | at the end of subsection (4) insert— |
| |
| “This subsection is subject to sections 25, 122 and 201 of the |
| |
Pensions Act 2004 (winding up order made when freezing |
| |
order has effect in relation to scheme or during assessment |
| 45 |
period under Part 2 of that Act).”, and |
| |
|
| |
|
| |
|
(d) | after subsection (6) insert— |
| |
“(6A) | Subsection (6) does not have effect to authorise the Authority to |
| |
make an order as mentioned in paragraph (a) or (b) of that |
| |
subsection, if their doing so would be unlawful as a result of |
| |
section 6(1) of the Human Rights Act 1998 (unlawful for public |
| 5 |
authority to act in contravention of a Convention right).” |
| |
| |
(1) | This section applies to an occupational pension scheme which is not a money |
| |
| |
(2) | The Regulator may make a freezing order in relation to such a scheme if and |
| 10 |
| |
(a) | the order is made pending consideration being given to the making of |
| |
an order in relation to the scheme under section 11(1)(c) of the Pensions |
| |
Act 1995 (c. 26) (power to wind up schemes where necessary to protect |
| |
the generality of members), and |
| 15 |
(b) | the Regulator is satisfied that— |
| |
(i) | there is, or is likely to be if the order is not made, an immediate |
| |
risk to the interests of members under the scheme or the assets |
| |
| |
(ii) | it is necessary to make the freezing order to protect the interests |
| 20 |
of the generality of the members of the scheme. |
| |
| But no freezing order may be made in relation to a scheme during an |
| |
assessment period (within the meaning of section 119) in relation to the scheme |
| |
| |
(3) | A freezing order is an order directing that during the period for which it has |
| 25 |
| |
(a) | no benefits are to accrue under the scheme to, or in respect of, members |
| |
| |
(b) | winding up of the scheme may not begin. |
| |
(4) | A freezing order may also contain one or more of the following directions |
| 30 |
which have effect during the period for which the order has effect— |
| |
(a) | a direction that no new members, or no specified classes of new |
| |
member, are to be admitted to the scheme; |
| |
| |
(i) | no further contributions or payments, or |
| 35 |
(ii) | no further specified contributions or payments, |
| |
| are to be paid towards the scheme by or on behalf of the employer, any |
| |
members or any specified members of the scheme; |
| |
(c) | a direction that any amount or any specified amount which— |
| |
(i) | corresponds to any contribution which would be due to be paid |
| 40 |
towards the scheme on behalf of a member but for a direction |
| |
| |
(ii) | has been deducted from a payment of any earnings in respect of |
| |
| |
| is to be repaid to the member in question by the employer; |
| 45 |
(d) | a direction that no benefits, or no specified benefits, are to be paid to or |
| |
in respect of any members or any specified members under the scheme; |
| |
|
| |
|
| |
|
(e) | a direction that payments of all benefits or specified benefits under the |
| |
scheme to or in respect of all the members or specified members may |
| |
only be made from the scheme if they are reduced in a specified manner |
| |
or by a specified amount; |
| |
| 5 |
(i) | no transfers or no specified transfers of, or no transfer payments |
| |
or no specified transfer payments in respect of, any member’s |
| |
rights under the scheme are to be made from the scheme, or |
| |
(ii) | transfers or specified transfers of, or transfer payments or |
| |
specified transfer payments in respect of, any member’s rights |
| 10 |
under the scheme may only be made from the scheme if the |
| |
amounts paid out from the scheme in respect of the transfers or |
| |
transfer payments are determined in a specified manner and the |
| |
transfers or transfer payments satisfy such other conditions as |
| |
| 15 |
(g) | a direction that no statements of entitlement are to be provided to |
| |
members of the scheme under section 93A of the Pension Schemes Act |
| |
1993 (c. 48) (salary related schemes: right to statement of entitlement). |
| |
(5) | In subsection (4)(b)— |
| |
(a) | the references to contributions do not include contributions due to be |
| 20 |
paid before the order takes effect, and |
| |
(b) | the references to payments towards a scheme include payments in |
| |
respect of pension credits where the person entitled to the credit is a |
| |
| |
(6) | A freezing order may not contain a direction under subsection (4)(d) or (e) |
| 25 |
which reduces the benefits payable to or in respect of a member, for the period |
| |
during which the order has effect, below the level to which the trustees or |
| |
managers of the scheme would have power to reduce them if a winding up of |
| |
the scheme had begun at the time when the freezing order took effect. |
| |
(7) | A freezing order may also require the trustees or managers of the scheme to |
| 30 |
obtain an actuarial valuation within a specified period. |
| |
(8) | A freezing order containing such a requirement must specify— |
| |
(a) | the date by reference to which the assets and liabilities are to be valued, |
| |
(b) | the assets and liabilities which are to be taken into account, |
| |
(c) | the manner in which the valuation must be prepared, |
| 35 |
(d) | the information and statements which it must contain, and |
| |
(e) | any other requirements that the valuation must satisfy. |
| |
(9) | For the purposes of subsection (7)— |
| |
| “an actuarial valuation” means a written valuation of the scheme’s assets |
| |
and liabilities prepared and signed by the actuary, and |
| 40 |
| |
(a) | the actuary appointed under section 47(1)(b) of the Pensions Act |
| |
1995 (c. 26) (professional advisers) in relation to the scheme, or |
| |
(b) | if no such actuary has been appointed— |
| |
(i) | a person with prescribed qualifications or experience, or |
| 45 |
(ii) | a person approved by the Secretary of State. |
| |
(10) | In this section “specified” means specified in the freezing order. |
| |
|
| |
|