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Pensions Bill


Pensions Bill
Part 1 — Pension scheme membership for jobholders
Chapter 2 — Compliance

15

 

32      

Third party compliance notices

(1)   

The Regulator may issue a third party compliance notice if it is of the opinion

that—

(a)   

an employer has contravened one or more of the employer duty

provisions,

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

provisions.

(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

notice.

(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

due date.

(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

contributions.

(3)   

Relevant contributions are contributions payable to a pension scheme by or on

behalf of an employer—

(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

earnings.

(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

appropriate;

(f)   

state that if the employer fails to comply with the notice, the Regulator

may issue a fixed penalty notice under section 35.

 
 

Pensions Bill
Part 1 — Pension scheme membership for jobholders
Chapter 2 — Compliance

16

 

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

contributions;

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

prescribed period, and

(ii)   

that, if the jobholder chooses to pay that amount, it may be paid

20

in instalments.

(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

jobholder.

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.

Penalty notices

35      

Fixed penalty notices

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

subsections,

 
 

Pensions Bill
Part 1 — Pension scheme membership for jobholders
Chapter 2 — Compliance

17

 

(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

records).

(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.

(4)   

The penalty—

(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

the notice relates;

(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

under section 36;

(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

information).

(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

been determined.

(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)

before a specified date.

(4)   

An escalating penalty is a penalty which is calculated by reference to a

prescribed daily rate.

(5)   

The prescribed daily rate—

45

 
 

Pensions Bill
Part 1 — Pension scheme membership for jobholders
Chapter 2 — Compliance

18

 

(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

escalating penalty;

(c)   

state the daily rate of the escalating penalty and the way in which the

penalty is calculated;

(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

under section 35(5)(b);

(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

determine;

(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

Regulator.

(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

under this section.

Review and appeal

30

38      

Review of notices

(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,

or

(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);

 
 

Pensions Bill
Part 1 — Pension scheme membership for jobholders
Chapter 2 — Compliance

19

 

(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

is completed.

(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

a reference.

(3)   

In section 102(2) of the Pensions Act 2004 (c. 35) (functions of the Pensions

20

Regulator Tribunal)—

(a)   

the words from “by this Act” to the end become paragraph (a);

(b)   

at the end insert—

“(b)   

by section 39 of the Pensions Act 2008 or any provision

in force in Northern Ireland corresponding to that

25

section.”

Offences

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

scale.

41      

Offences of providing false or misleading information

In section 80(1)(a) of the Pensions Act 2004 (offences of providing false or

 
 

Pensions Bill
Part 1 — Pension scheme membership for jobholders
Chapter 2 — Compliance

20

 

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

accordingly.”

Records and information

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

as may be prescribed;

(b)   

to preserve those records for such period, not exceeding 6 years, as may

be prescribed;

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

requirements.

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

subsection (2) applies—

(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

explanation.

(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—

 
 

Pensions Bill
Part 1 — Pension scheme membership for jobholders
Chapter 2 — Compliance

21

 

(a)   

employees of the employer are employed there,

(b)   

documents relevant to any of the following are being kept

there—

(i)   

the administration of the employer’s business,

(ii)   

the duties of the employer under Chapter 1 of Part 1 of

5

the Pensions Act 2008,

(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

Act.”

(4)   

In section 75(1), after “subsection” (in the third place where it occurs) insert

15

“(A1),”.

(5)   

In section 76(9), after “subsection” (in the second place where it occurs) insert

“(A1),”.

45      

Disclosure of tax information etc

(1)   

In the Pensions Act 2004 (c. 35) for section 88 (tax information) substitute—

20

“88     

Tax information etc

(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—

(a)   

tax or duty;

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

functions.

(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,

 
 

 
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