|
| |
|
133 | Consequences of the Board ceasing to be involved with a scheme |
| |
| |
(a) | an assessment period comes to an end by virtue of the Board ceasing to |
| |
be involved with an eligible scheme, and |
| |
(b) | during the assessment period any amount of any benefit payable to a |
| 5 |
member, or to a person in respect of a member, under the scheme was |
| |
not paid by reason of section 125 (requirement to pay benefits in |
| |
accordance with the pension compensation provisions), |
| |
| that amount falls due to the member, or as the case may be, person at the end |
| |
| 10 |
(2) | Regulations may provide that, in cases within paragraph (a) of subsection (1), |
| |
benefits are to accrue under the scheme, in such circumstances as may be |
| |
prescribed, to or in respect of members of the scheme in respect of any specified |
| |
period of service being service in employment which, but for section 120(5), |
| |
would have qualified the member in question for those benefits under the |
| 15 |
| |
(3) | Regulations under subsection (2) may in particular make provision— |
| |
(a) | for benefits not to accrue to, or in respect of, a member unless |
| |
contributions are paid by or on behalf of the member towards the |
| |
scheme within a prescribed period; |
| 20 |
(b) | for contributions towards the scheme which, but for section 120, would |
| |
have been payable by or on behalf of the employer (otherwise than on |
| |
behalf of an employee) during the assessment period, to fall due; |
| |
(c) | requiring that such contributions as are mentioned in paragraph (a) or |
| |
(b) are accepted for the assessment period or any part of that period. |
| 25 |
(4) | In this section “contributions” means, in relation to an eligible scheme, |
| |
contributions payable towards the scheme by or on behalf of the employer or |
| |
the active members of the scheme in accordance with the schedule of |
| |
contributions maintained under section 208 in respect of the scheme. |
| |
| 30 |
134 | Application for reconsideration |
| |
(1) | Where subsection (2) or (3) applies in relation to an eligible scheme, the trustees |
| |
or managers of the scheme may make an application to the Board under this |
| |
section for it to assume responsibility for the scheme in accordance with this |
| |
| 35 |
(2) | This subsection applies where— |
| |
(a) | a notice confirming that a scheme rescue is not possible in relation to |
| |
the scheme has been issued under section 111(2) and the trustees or |
| |
managers have received a copy of that notice under section 111(6) (or, |
| |
in a case to which section 112 applies, under subsection (4) of that |
| 40 |
| |
(b) | the valuation obtained by the Board under section 127 in respect of the |
| |
scheme has become binding, and |
| |
(c) | the Board would have been required to assume responsibility for the |
| |
scheme under section 114 but for the fact that the condition in |
| 45 |
subsection (2)(a) of that section was not satisfied. |
| |
|
| |
|
| |
|
(3) | This subsection applies where— |
| |
(a) | the Board has issued a notice under subsection (2) of section 117 |
| |
confirming that a scheme rescue is not possible in relation to the scheme |
| |
and the trustees or managers have received a copy of that notice under |
| |
subsection (4) of that section, |
| 5 |
(b) | the valuation obtained by the Board under section 127 in respect of the |
| |
scheme has become binding, and |
| |
(c) | the Board would have been required to assume responsibility for the |
| |
scheme under section 115 but for the fact that the condition in |
| |
subsection (2)(a) of that section was not satisfied. |
| 10 |
(4) | An application under this section must be in the prescribed form, contain the |
| |
prescribed information and be accompanied by— |
| |
(a) | a protected benefits quotation in the prescribed form, and |
| |
(b) | an auditor’s valuation of the scheme as at a date (“the reconsideration |
| |
date”) within the prescribed period ending with the day on which the |
| 15 |
| |
(5) | An application under this section must be made within the authorised period. |
| |
(6) | In this section “the authorised period” means the prescribed period which |
| |
| |
(a) | where subsection (2) applies, with the later of— |
| 20 |
(i) | the day on which the trustees or managers received the copy |
| |
notice mentioned in paragraph (a) of that subsection, and |
| |
(ii) | the day on which they were notified of the binding valuation |
| |
mentioned in paragraph (b) of that section, and |
| |
(b) | where subsection (3) applies, with the later of— |
| 25 |
(i) | the day on which the trustees or managers received the copy |
| |
notice mentioned in paragraph (a) of that subsection, and |
| |
(ii) | the day on which they were notified of the binding valuation |
| |
mentioned in paragraph (b) of that subsection. |
| |
(7) | For the purposes of this section— |
| 30 |
| “auditor’s valuation”, in relation to a scheme, means a written valuation |
| |
of the assets of the scheme (excluding any assets representing the value |
| |
of any rights in respect of money purchase benefits under the scheme), |
| |
prepared and signed by the auditor in relation to the scheme (within |
| |
the meaning given by section 47 of the Pensions Act 1995 (c. 26)); |
| 35 |
| “protected benefits quotation”, in relation to a scheme, means a quotation |
| |
for one or more annuities from one or more insurers, being companies |
| |
willing to accept payment in respect of the members from the trustees |
| |
or managers of the scheme, which would provide in respect of each |
| |
member of the scheme from the reconsideration date— |
| 40 |
(a) | benefits to or in respect of the member corresponding to the |
| |
compensation which would be payable to or in respect of the |
| |
member in accordance with the pension compensation |
| |
provisions if the Board assumed responsibility for the scheme |
| |
by virtue of this section, or |
| 45 |
(b) | benefits in accordance with the member’s entitlement or |
| |
accrued rights (including pension credit rights within the |
| |
meaning of section 124(1) of the Pensions Act 1995)) under the |
| |
scheme rules (other than his entitlement or rights in respect of |
| |
| 50 |
|
| |
|
| |
|
| whichever benefits can, in the case of that member, be secured at the lower |
| |
| |
| ‘”scheme rules”, in relation to a scheme, means— |
| |
(a) | the rules of the scheme, except so far as section 129 of the |
| |
Pension Schemes Act 1993 (c. 48), section 117 of the Pensions |
| 5 |
Act 1995 (c. 26) or section 264 of this Act overrides them, |
| |
(b) | any provision of any of those Acts which overrides or modifies |
| |
any of the rules of the scheme by virtue of one of the provisions |
| |
mentioned in paragraph (a), and |
| |
(c) | any provision which the rules of the scheme do not contain but |
| 10 |
which the scheme must contain if it is to conform with the |
| |
requirements of Chapter 1 of Part 4 of the Pension Schemes Act |
| |
1993 (preservation of benefit under occupational pension |
| |
| |
(8) | Subject to subsection (9), regulations under subsection (4) of section 127, and |
| 15 |
guidance under subsection (5) of that section, apply to an auditor’s valuation |
| |
for the purposes of this section as they apply for the purposes of a valuation |
| |
| |
(9) | Regulations may provide for the purposes of an auditor’s valuation |
| |
accompanying an application under this section— |
| 20 |
(a) | that the value assigned to assets of a prescribed description is to be the |
| |
value assigned to those assets in the binding valuation obtained under |
| |
| |
(b) | how the value to be assigned to such an asset is to be determined where |
| |
the asset has been acquired during the assessment period. |
| 25 |
135 | Duty to assume responsibility following reconsideration |
| |
(1) | This section applies where an application is made in respect of a scheme in |
| |
accordance with section 134. |
| |
(2) | The Board must assume responsibility for the scheme in accordance with this |
| |
Chapter if it is satisfied that the value of the assets of the scheme at the |
| 30 |
reconsideration date is less than the aggregate of— |
| |
(a) | the amount quoted in the protected benefits quotation accompanying |
| |
| |
(b) | the amount of the liabilities of the scheme which are not liabilities to, or |
| |
in respect of, members of the scheme, and |
| 35 |
(c) | the estimated costs of winding up the scheme. |
| |
(3) | Where the Board makes a determination for the purposes of subsection (2), it |
| |
must issue a determination notice and give a copy of that notice to— |
| |
(a) | the trustees or managers of the scheme, and |
| |
| 40 |
(4) | In subsection (3) “determination notice” means a notice which is in the |
| |
prescribed form and contains such information about the determination as |
| |
| |
(5) | The Board may, for the purposes of subsection (2), obtain its own valuation of |
| |
the assets of the scheme as at the reconsideration date and, where it does so, |
| 45 |
section 134(8) and (9) apply as they apply in relation to the auditor’s valuation |
| |
| |
|
| |
|
| |
|
(6) | The amount of the liabilities mentioned in subsection (2)(b) is to be taken to be |
| |
the amount assigned to those liabilities of the scheme which are not liabilities |
| |
to, or in respect of, members of the scheme in— |
| |
(a) | the binding valuation obtained under section 127, or |
| |
(b) | where a valuation of those liabilities at a more recent date (but not later |
| 5 |
than the reconsideration date) has been obtained by the trustees or |
| |
managers of the scheme for the purposes of the audited scheme |
| |
accounts, that valuation. |
| |
(7) | In subsection (6) “audited scheme accounts”, in relation to a scheme, means |
| |
accounts, audited by the auditor of the scheme, which are obtained by the |
| 10 |
trustees or managers of the scheme in accordance with a requirement under |
| |
section 41 of the Pensions Act 1995 (c. 26). |
| |
(8) | In this section references to the assets of the scheme do not include assets |
| |
representing the value of any rights in respect of money purchase benefits |
| |
| 15 |
(9) | This section is subject to sections 130 and 131 (refusal to assume responsibility |
| |
| |
| |
| |
(1) | This section applies where section 134(2) or (3) (scheme rescue not possible but |
| 20 |
scheme has sufficient assets to meet the protected liabilities) applies in relation |
| |
| |
(2) | If the trustees or managers of the scheme are unable to obtain a full buy-out |
| |
quotation, they must, within the authorised period, apply to the Board for |
| |
authority to continue as a closed scheme. |
| 25 |
(3) | For the purposes of determining whether they must make an application under |
| |
subsection (2), the trustees and managers of the scheme must take all |
| |
reasonable steps to obtain a full buy-out quotation in respect of the scheme. |
| |
(4) | An application under subsection (2) must— |
| |
(a) | be in the prescribed form and contain the prescribed information, and |
| 30 |
(b) | be accompanied by evidence in the prescribed form which shows that |
| |
the trustees or managers of the scheme have complied with the |
| |
obligation under subsection (3) but were unable to obtain a full buy-out |
| |
| |
(5) | Where the Board receives an application under subsection (2), if it is satisfied |
| 35 |
that the trustees or managers have complied with the obligation under |
| |
subsection (3) but were unable to obtain a full buy-out quotation, it must |
| |
authorise the scheme to continue as a closed scheme. |
| |
(6) | Where the Board determines an application in respect of a scheme under this |
| |
section, it must issue a determination notice and give a copy of that notice to— |
| 40 |
(a) | the trustees or managers of the scheme, and |
| |
| |
| |
| “authorised period” has the same meaning as in section 134; |
| |
|
| |
|
| |
|
| “determination notice” means a notice which is in the prescribed form and |
| |
contains such information about the determination as may be |
| |
| |
| “full buy-out quotation”, in relation to a scheme, means a quotation for |
| |
one or more annuities from one or more insurers (being companies |
| 5 |
willing to accept payment in respect of the members from the trustees |
| |
or managers of the scheme) which would provide in respect of each |
| |
member of the scheme, from a relevant date, benefits in accordance |
| |
with the member’s entitlement or accrued rights, including pension |
| |
credit rights, under the scheme (other than his entitlement or rights in |
| 10 |
respect of money purchase benefits); |
| |
| “pension credit rights” has the meaning given in section 124(1) of the |
| |
Pensions Act 1995 (c. 26); |
| |
| “relevant date” means a date within the authorised period. |
| |
(8) | If the trustees or managers of the scheme fail to comply with subsection (2) or |
| 15 |
(3), 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. |
| |
| |
137 | Requirement to wind up schemes with sufficient assets to meet protected |
| |
| 20 |
(1) | Where, in relation to an eligible scheme, an assessment period within section |
| |
119(2) or (4) comes to an end because the conditions in subsection (2) of this |
| |
section are satisfied, the trustees or managers of the scheme must— |
| |
(a) | wind up the scheme, or |
| |
(b) | where the winding up of the scheme began before the assessment |
| 25 |
period (whether by virtue of section 201 or otherwise), continue the |
| |
winding up of the scheme. |
| |
| |
(a) | that subsection (2) or (3) of section 134 (scheme rescue not possible but |
| |
scheme has sufficient assets to meet the protected liabilities) applies in |
| 30 |
| |
| |
(i) | the trustees or managers did not make an application under that |
| |
section or section 136(2) within the authorised period (within |
| |
the meaning of section 134(6)) (or any such application has been |
| 35 |
| |
(ii) | if such an application was made, it has been finally determined, |
| |
| |
(c) | that, if an application was made under section 134, the Board is not |
| |
required to assume responsibility for the scheme by virtue of section |
| 40 |
| |
(3) | For the purposes of subsection (2)(b)(ii) an application is not finally |
| |
| |
(a) | the Board has issued a determination notice in respect of the |
| |
application under section 135 or, as the case may be, 136, |
| 45 |
(b) | the period within which the issue of the notice may be reviewed by |
| |
virtue of Chapter 6 has expired, and |
| |
|
| |
|
| |
|
(c) | if the issue of the notice is so reviewed— |
| |
(i) | the review and any reconsideration, |
| |
(ii) | any reference to the PPF Ombudsman in respect of the |
| |
| |
(iii) | any appeal against his determination or directions, |
| 5 |
| has been finally disposed of. |
| |
(4) | Where, in relation to an eligible scheme, an assessment period within section |
| |
142(2) comes to an end because the conditions in subsection (5) of this section |
| |
are satisfied, the trustees or managers of the scheme must continue the |
| |
winding up of the scheme begun (whether in accordance with this section or |
| 10 |
otherwise) before that assessment period. |
| |
| |
(a) | that an application is made by, or notice is given to, the trustees or |
| |
managers of the scheme under section 140, |
| |
(b) | that the valuation obtained by the Board in respect of the scheme under |
| 15 |
section 141(3) has become binding, and |
| |
(c) | that the Board is not required to assume responsibility for the scheme |
| |
by virtue of section 141(1). |
| |
(6) | Where a scheme is wound up in accordance with subsection (1)(a), the winding |
| |
up is to be taken as beginning immediately before the assessment period. |
| 20 |
(7) | Without prejudice to the power to give directions under section 121, the Board |
| |
may give the trustees or managers of the scheme directions relating to the |
| |
manner of the winding up of the scheme under this section (and may vary or |
| |
revoke any such direction given by it). |
| |
(8) | The winding up of a scheme under this section is as effective in law as if it had |
| 25 |
been made under powers conferred by or under the scheme. |
| |
(9) | This section must be complied with in relation to a scheme— |
| |
(a) | in spite of any enactment or rule of law, or any rule of the scheme, |
| |
which would otherwise operate to prevent the winding up, and |
| |
(b) | without regard to any such enactment, rule of law or rule of the scheme |
| 30 |
as would otherwise require or might otherwise be taken to require the |
| |
implementation of any procedure or the obtaining of any consent with |
| |
a view to the winding up. |
| |
(10) | Where a public service pension scheme is required to be wound up under this |
| |
section, provision may be made by order modifying any enactment in which |
| 35 |
the scheme is contained or under which it is made. |
| |
Provisions applying to closed schemes |
| |
138 | Treatment of closed schemes |
| |
(1) | In this section “closed scheme” means an eligible scheme which is authorised |
| |
under section 136 to continue as a closed scheme. |
| 40 |
(2) | The provisions mentioned in subsection (3) apply in relation to a closed scheme |
| |
at any time when the trustees or managers of the scheme are required to wind |
| |
up or continue winding up the scheme under section 137 as if that time fell |
| |
within an assessment period in relation to the scheme. |
| |
|
| |
|
| |
|
| |
(a) | section 120 (admission of new members, payment of contributions etc); |
| |
(b) | section 121 (directions); |
| |
(c) | section 124 (Board to act as creditor of the employer). |
| |
(4) | Section 120, as it applies by virtue of subsection (2), does not preclude the |
| 5 |
admission to a closed scheme of new pension credit members (within the |
| |
meaning of section 124(1) of the Pensions Act 1995 (c. 26)). |
| |
139 | Valuations of closed schemes |
| |
(1) | Regulations may make provision requiring the trustees or managers of closed |
| |
schemes to obtain actuarial valuations of the scheme at such intervals as may |
| 10 |
be prescribed for the purposes of enabling them to determine— |
| |
(a) | the benefits payable under the scheme; |
| |
(b) | whether to make an application under section 140. |
| |
(2) | Regulations under this section may prescribe how— |
| |
(a) | the assets, the full scheme liabilities and the protected liabilities in |
| 15 |
relation to closed schemes, and |
| |
(b) | their amount or value, |
| |
| are to be determined, calculated and verified. |
| |
(3) | Subject to any provision made under subsection (2), those matters are to be |
| |
determined, calculated and verified in accordance with guidance issued by the |
| 20 |
| |
(4) | In calculating the amount of any liabilities for the purposes of a valuation |
| |
required by virtue of this section, a provision of the scheme which limits the |
| |
amount of its liabilities by reference to the value of its assets is to be |
| |
| 25 |
(5) | In this section, in relation to a scheme— |
| |
| “actuarial valuation” means a written valuation of— |
| |
| |
(b) | the full scheme liabilities, and |
| |
(c) | the protected liabilities in relation to the scheme; |
| 30 |
| |
(a) | the actuary appointed under section 47(1)(b) of the Pensions Act |
| |
1995 (professional advisers) in relation to the scheme, or |
| |
(b) | if no such actuary has been appointed, a person with prescribed |
| |
| 35 |
| “assets” do not include assets representing the value of any rights in |
| |
respect of money purchase benefits under the scheme; |
| |
| “closed scheme” has the same meaning as in section 138; |
| |
| “full scheme liabilities” means— |
| |
(a) | the liabilities under the scheme to or in respect of members of |
| 40 |
| |
(b) | other liabilities of the scheme, and |
| |
(c) | the estimated cost of winding up the scheme; |
| |
| “liabilities” does not include liabilities in respect of money purchase |
| |
benefits under the scheme. |
| 45 |
|
| |
|