|
| |
|
32 | Third party compliance notices |
| |
(1) | The Regulator may issue a third party compliance notice if it is of the opinion |
| |
| |
(a) | an employer has contravened one or more of the employer duty |
| |
| 5 |
(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 any of the employer duty |
| |
| |
(2) | A third party compliance notice is a notice directing the third party to take, or |
| 10 |
refrain from taking, the steps specified in the notice in order to remedy the |
| |
contravention or prevent a recurrence of the failure. |
| |
(3) | A third party notice may, in particular— |
| |
(a) | state the period within which any step must be taken; |
| |
(b) | require the third party to inform the Regulator, within a specified |
| 15 |
period, how the third party has complied or is complying with the |
| |
| |
(4) | A third party notice may give the third party a choice between different ways |
| |
of remedying or preventing the recurrence of the third party’s failure. |
| |
33 | Unpaid contributions notices |
| 20 |
(1) | The Regulator may issue an unpaid contributions notice to an employer if it is |
| |
of the opinion that relevant contributions have not been paid on or before the |
| |
| |
(2) | An unpaid contributions notice is a notice requiring an employer to pay into a |
| |
pension scheme by a specified date an amount in respect of unpaid relevant |
| 25 |
| |
(3) | Relevant contributions are contributions payable to a pension scheme by or on |
| |
| |
(a) | on the employer’s own account (but in respect of the jobholder), or |
| |
(b) | on behalf of the jobholder out of deductions from the jobholder’s |
| 30 |
| |
(4) | “Due date” has the meaning prescribed by regulations. |
| |
(5) | An unpaid contributions notice may, in particular— |
| |
(a) | specify the scheme to which the contributions are due; |
| |
(b) | specify the jobholders, or category of jobholders, in respect of whom |
| 35 |
the contributions are due; |
| |
(c) | state the period in respect of which the contributions are due; |
| |
(d) | state the due date in respect of the contributions; |
| |
(e) | require the employer to take such other steps in relation to remedying |
| |
the failure to pay the contributions as the Regulator considers |
| 40 |
| |
(f) | state that if the employer fails to comply with the notice, the Regulator |
| |
may issue a fixed penalty notice under section 35. |
| |
|
| |
|
| |
|
34 | Calculation and payment of contributions |
| |
(1) | This section applies to— |
| |
(a) | a compliance notice issued to an employer in respect of a failure to |
| |
comply with an enrolment duty; |
| |
(b) | an unpaid contributions notice. |
| 5 |
(2) | The notice may, in particular, include— |
| |
(a) | a requirement to calculate the amount of relevant contributions that |
| |
have not been paid to the scheme; |
| |
(b) | if the contributions are being paid within the prescribed period after the |
| |
due date, a requirement to pay an amount equal to the amount of |
| 10 |
unpaid relevant contributions within section 33(3)(a); |
| |
(c) | if the contributions are not being paid within the prescribed period |
| |
after the due date, a requirement to pay (on the employer’s own |
| |
account) an amount equal to the amount of unpaid relevant |
| |
| 15 |
(d) | if paragraph (b) applies, a requirement to ensure— |
| |
(i) | that the jobholder is not required to pay an amount equal to the |
| |
balance of the unpaid relevant contributions during the |
| |
| |
(ii) | that, if the jobholder chooses to pay that amount, it may be paid |
| 20 |
| |
(3) | The Secretary of State may by regulations make provision about the way in |
| |
which the Regulator may (without prejudice to subsection (2)(a)) estimate the |
| |
amount of contributions that an employer has failed to pay in respect of a |
| |
| 25 |
(4) | Regulations under subsection (3) may include, in particular, provision about |
| |
the sources of information that the Regulator may use in estimating that |
| |
amount, other than information provided by the employer. |
| |
| |
| 30 |
(1) | The Regulator may issue a fixed penalty notice to a person if it is of the opinion |
| |
that the person has failed to comply with— |
| |
(a) | a compliance notice under section 31, |
| |
(b) | a third party compliance notice under section 32, |
| |
(c) | an unpaid contributions notice under section 33, or |
| 35 |
(d) | a notice issued under section 72 of the Pensions Act 2004 (c. 35) |
| |
(provision of information). |
| |
(2) | The Regulator may issue a fixed penalty notice to a person if it is of the opinion |
| |
that the person has contravened— |
| |
(a) | any provision of regulations under section 3(2) or 5(2) (prescribed |
| 40 |
arrangements for automatic enrolment or re-enrolment), |
| |
(b) | any provision of regulations under section 6(4) (prescribed |
| |
arrangements: jobholder’s right to opt in), |
| |
(c) | section 7(3) and (4) (refund of contributions if jobholder opts out of |
| |
scheme membership), and any provision of regulations under those |
| 45 |
| |
|
| |
|
| |
|
(d) | section 9 (requirement to give information to jobholders), and any |
| |
provision of regulations under that section, or |
| |
(e) | any provision of regulations under section 43 (requirement to keep |
| |
| |
(3) | A fixed penalty notice is a notice requiring the person to whom it is issued to |
| 5 |
pay a penalty within the period specified in the notice. |
| |
| |
(a) | is to be determined in accordance with regulations, and |
| |
(b) | must not exceed £50,000. |
| |
(5) | A fixed penalty notice must— |
| 10 |
(a) | state the amount of the penalty; |
| |
(b) | state the date, which must be at least 4 weeks after the date on which |
| |
the notice is issued, by which the penalty must be paid; |
| |
(c) | state the period to which the penalty relates; |
| |
(d) | if the notice is issued under subsection (1), specify the failure to which |
| 15 |
| |
(e) | if the notice is issued under subsection (2), specify the provision or |
| |
provisions that have been contravened; |
| |
(f) | if the notice is issued under subsection (1), state that, if the failure to |
| |
comply continues, the Regulator may issue an escalating penalty notice |
| 20 |
| |
(g) | notify the employer of the review process under section 38 and the right |
| |
of appeal under section 39. |
| |
36 | Escalating penalty notices |
| |
(1) | The Regulator may issue an escalating penalty notice to a person if it is of the |
| 25 |
opinion that the person has failed to comply with— |
| |
(a) | a compliance notice under section 31, |
| |
(b) | a third party compliance notice under section 32, |
| |
(c) | an unpaid contributions notice under section 33, or |
| |
(d) | a notice under section 72 of the Pensions Act 2004 (c. 35) (provision of |
| 30 |
| |
(2) | But the Regulator may not issue an escalating penalty notice if— |
| |
(a) | it relates to failure to comply with a notice within subsection (1)(a), (b) |
| |
or (c), the person to whom that notice was issued has applied for a |
| |
review of it under section 38, and any review has not been completed; |
| 35 |
(b) | it relates to failure to comply with any notice within subsection (1), the |
| |
person has exercised the right of appeal under section 39 against a fixed |
| |
penalty notice issued in relation to that notice, and the appeal has not |
| |
| |
(3) | An escalating penalty notice is a notice requiring a person to pay an escalating |
| 40 |
penalty if the person fails to comply with a notice referred to in subsection (1) |
| |
| |
(4) | An escalating penalty is a penalty which is calculated by reference to a |
| |
| |
(5) | The prescribed daily rate— |
| 45 |
|
| |
|
| |
|
(a) | is to be determined in accordance with regulations, and |
| |
(b) | must not exceed £10,000. |
| |
(6) | An escalating penalty notice must— |
| |
(a) | specify the failure to which the notice relates; |
| |
(b) | state that, if the person fails to comply with the notice referred to in |
| 5 |
subsection (1) before a specified date, the person will be liable to pay an |
| |
| |
(c) | state the daily rate of the escalating penalty and the way in which the |
| |
| |
(d) | state the date from which the escalating penalty will be payable, which |
| 10 |
must not be earlier than the date specified in the fixed penalty notice |
| |
| |
(e) | state that the escalating penalty will continue to be payable at the daily |
| |
rate until the date on which the person complies with the notice |
| |
referred to in subsection (1) or such earlier date as the Regulator may |
| 15 |
| |
(f) | notify the person of the review process under section 38 and the right |
| |
of appeal under section 39. |
| |
37 | Penalty notices: recovery |
| |
(1) | Any penalty payable under section 35 or section 36 is recoverable by the |
| 20 |
| |
(2) | In England and Wales, any such penalty is, if a county court so orders, |
| |
recoverable under section 85 of the County Courts Act 1984 (c. 28) or otherwise |
| |
as if it were payable under an order of that court. |
| |
(3) | In Scotland, a fixed penalty notice or escalating penalty notice is enforceable as |
| 25 |
if it were an extract registered decree arbitral bearing a warrant for execution |
| |
issued by the sheriff court of any sheriffdom in Scotland. |
| |
(4) | The Regulator must pay into the Consolidated Fund any penalty recovered |
| |
| |
| 30 |
| |
(1) | The Regulator may review a notice to which this section applies— |
| |
(a) | on the written application of the person to whom the notice was issued, |
| |
| |
(b) | if the Regulator otherwise considers it appropriate. |
| 35 |
(2) | This section applies to— |
| |
(a) | a compliance notice issued under section 31; |
| |
(b) | a third party compliance notice issued under section 32; |
| |
(c) | an unpaid contributions notice issued under section 33; |
| |
(d) | a fixed penalty notice issued under section 35; |
| 40 |
(e) | an escalating penalty notice issued under section 36. |
| |
(3) | Regulations may prescribe the period within which— |
| |
(a) | an application to review a notice may be made under subsection (1)(a); |
| |
|
| |
|
| |
|
(b) | a notice may be reviewed under subsection (1)(b). |
| |
(4) | The Regulator may suspend the effect of a notice until any review of that notice |
| |
| |
(5) | In carrying out a review, the Regulator must consider any representations |
| |
made by the person to whom the notice was issued. |
| 5 |
(6) | The Regulator’s powers on a review include power to— |
| |
(a) | confirm, vary or revoke the notice; |
| |
(b) | substitute a different notice. |
| |
39 | References to the Pensions Regulator Tribunal |
| |
(1) | A person to whom a notice is issued under section 35 or section 36 may make |
| 10 |
a reference to the Pensions Regulator Tribunal in respect of— |
| |
(a) | the issue of the notice; |
| |
(b) | the amount of the penalty payable under the notice. |
| |
(2) | The Secretary of State may by regulations make provision— |
| |
(a) | as to the manner in which, and the time within which, a reference under |
| 15 |
subsection (1) may be made; |
| |
(b) | as to the procedure which is to be followed if such a reference is made; |
| |
(c) | as to the powers of the Pensions Regulator Tribunal in relation to such |
| |
| |
(3) | In section 102(2) of the Pensions Act 2004 (c. 35) (functions of the Pensions |
| 20 |
| |
(a) | the words from “by this Act” to the end become paragraph (a); |
| |
| |
“(b) | by section 39 of the Pensions Act 2008 or any provision |
| |
in force in Northern Ireland corresponding to that |
| 25 |
| |
| |
40 | Offences of failing to comply |
| |
(1) | An offence is committed by an employer who wilfully fails to comply with— |
| |
(a) | the duty under section 3(2) (automatic enrolment), |
| 30 |
(b) | the duty under section 5(2) (automatic re-enrolment), or |
| |
(c) | the duty under section 6(3) (jobholder’s right to opt in). |
| |
(2) | A person guilty of an offence under this section is liable— |
| |
(a) | on conviction on indictment, to imprisonment for a term not exceeding |
| |
two years, or to a fine, or both; |
| 35 |
(b) | on summary conviction to a fine not exceeding level 5 on the standard |
| |
| |
41 | Offences of providing false or misleading information |
| |
In section 80(1)(a) of the Pensions Act 2004 (offences of providing false or |
| |
|
| |
|
| |
|
misleading information) at the end of sub-paragraph (iv) insert “or |
| |
“(v) | regulations under section 10 of the Pensions Act 2008,”. |
| |
42 | Monitoring of employers’ payments to personal pension schemes |
| |
In section 111A of the Pension Schemes Act 1993 (c. 48), at the end insert— |
| |
“(18) | In this section, “employee” includes a jobholder within the meaning of |
| 5 |
section 1 of the Pensions Act 2008 and “employer” is to be read |
| |
| |
| |
43 | Requirement to keep records |
| |
(1) | For the purposes of Chapter 1 of this Part, or this Chapter, the Secretary of State |
| 10 |
may by regulations make provision requiring any person— |
| |
(a) | to keep, in such form and manner as may be prescribed, such records |
| |
| |
(b) | to preserve those records for such period, not exceeding 6 years, as may |
| |
| 15 |
(c) | to provide those records, on request, to the Regulator. |
| |
(2) | Regulations under subsection (1) may provide that section 10 of the Pensions |
| |
Act 1995 (c. 26) applies to a person who fails to comply with those |
| |
| |
44 | Powers to require information and to enter premises |
| 20 |
(1) | The Pensions Act 2004 (c. 35) is amended as follows. |
| |
(2) | In section 72, after subsection (1) insert— |
| |
“(1A) | If the Regulator requires information which is relevant to the exercise |
| |
of its functions under Chapter 2 of Part 1 of the Pensions Act 2008, the |
| |
Regulator may, by notice in writing, require a person to whom |
| 25 |
| |
(a) | to furnish the Regulator with an explanation of any document |
| |
or information required under subsection (1); |
| |
(b) | to attend before the Regulator at such time and place as may be |
| |
specified in the notice under that subsection to furnish any such |
| 30 |
| |
(1B) | The Regulator may not require a person to answer any question or |
| |
furnish any information which might incriminate the person or, if |
| |
married or a civil partner, the person’s spouse or civil partner.” |
| |
(3) | In section 74, before subsection (1) insert— |
| 35 |
“(A1) | An inspector may, for the purposes of investigating whether an |
| |
employer is complying, or has complied, with the requirements under |
| |
Chapter 1 of Part 1 of the Pensions Act 2008, at any reasonable time |
| |
enter premises liable to inspection. |
| |
(B1) | Premises are liable to inspection for the purposes of subsection (A1) if |
| 40 |
the inspector has reasonable grounds to believe that— |
| |
|
| |
|
| |
|
(a) | employees of the employer are employed there, |
| |
(b) | documents relevant to any of the following are being kept |
| |
| |
(i) | the administration of the employer’s business, |
| |
(ii) | the duties of the employer under Chapter 1 of Part 1 of |
| 5 |
| |
(iii) | the administration of a qualifying scheme, or |
| |
(c) | the administration of the employer’s business, or work |
| |
connected with that administration, is being carried out there. |
| |
(C1) | In subsections (A1) and (B1)— |
| 10 |
“employer” and “employee” have the meaning given by section 77 |
| |
of the Pensions Act 2008; |
| |
“qualifying scheme” has the meaning given by section 15 of that |
| |
| |
(4) | In section 75(1), after “subsection” (in the third place where it occurs) insert |
| 15 |
| |
(5) | In section 76(9), after “subsection” (in the second place where it occurs) insert |
| |
| |
45 | Disclosure of tax information etc |
| |
(1) | In the Pensions Act 2004 (c. 35) for section 88 (tax information) substitute— |
| 20 |
| |
(1) | This section applies to information held by the Revenue and Customs |
| |
if it is held by them in connection with a function of the Revenue and |
| |
Customs that relates to any of these matters— |
| |
| 25 |
(b) | national insurance contributions; |
| |
(c) | the national minimum wage. |
| |
(2) | An officer of Revenue and Customs may disclose to the Regulator |
| |
information to which this section applies, if the disclosure is made for |
| |
the purpose of enabling or assisting the Regulator to discharge its |
| 30 |
| |
(3) | Where information to which this section applies is disclosed to the |
| |
Regulator by virtue of subsection (2) above or section 19 of the Anti- |
| |
terrorism, Crime and Security Act 2001 (disclosure of information held |
| |
by revenue departments), it must, subject to subsections (4) and (5), be |
| 35 |
treated for the purposes of section 82 as restricted information. |
| |
(4) | Information to which this section applies which is disclosed to the |
| |
Regulator as mentioned in subsection (3) may not be disclosed by the |
| |
Regulator or any person who receives the information directly or |
| |
indirectly from the Regulator except— |
| 40 |
(a) | to, or in accordance with authority given by, the Commissioners |
| |
for Her Majesty’s Revenue and Customs, |
| |
(b) | with a view to the institution of, or otherwise for the purposes |
| |
of, any criminal proceedings, |
| |
|
| |
|