Pensions (Amendment) Act , 1996

1 Definition.

1.—In this Act “the Principal Act” means the Pensions Act, 1990.

2 Amendment of section 2 of Principal Act.

2.—Section 2 of the Principal Act is hereby amended by—

(a) the insertion after the definition of “auditor” of the following definition:

“‘authorised person’ means a person authorised as an authorised person under section 18;”,

(b) the substitution in the definition of “early retirement rule” (inserted by section 42 (b) of the Social Welfare Act, 1993) for paragraph (ii) of the following paragraph:

“(ii) the calculation of the member's immediate retirement benefit involves or may involve an actuarial reduction which exceeds 0.25 per cent., or such other percentage as may be prescribed, multiplied by the number of completed months by which the member's age at retirement is less than a stated age;”,

(c) the substitution in the definition of “normal pensionable age” (inserted by section 42 (d) of the Social Welfare Act, 1993) for paragraph (a) of the following paragraph:

“(a) the earliest age at which a member of a scheme is entitled under the rules of the scheme (other than under any early retirement rule) to receive an immediate retirement benefit, or”, and

(d) the substitution in the definition of “reckonable service” (inserted by section 42 (f) of the Social Welfare Act, 1993) for paragraph (a) of the following paragraph:

“(a) the only benefit under the scheme in respect of such service is in respect of death prior to normal pensionable age, or”.

3 Amendment of section 3 of Principal Act.

3.—Section 3 of the Principal Act is hereby amended by—

(a) the substitution of the following paragraph for paragraph (c) of subsection (1):

“(c) In a prosecution for an offence under paragraph (a), (b) or (bb) it shall be a defence for the accused person to prove that the contravention to which the offence relates was attributable to:

(i) a contravention by one or more other persons of a provision of this Act or a regulation thereunder and that he took such reasonable steps (if any) in the circumstances as were open to him to secure the compliance of the person or persons aforesaid with the provision concerned, or

(ii) a failure by an actuary, auditor or other person to prepare a document which the accused person had instructed the actuary, auditor or other person to prepare and that the accused person took such reasonable steps (if any) in the circumstances as were open to him to secure the preparation of the said document by the actuary, auditor or other person aforesaid.”,

(b) the insertion after subsection (5) of the following subsection:

“(6) Notwithstanding the provisions of section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act may be commenced—

(a) at any time within 2 years from the date on which the offence was committed, or

(b) at any time within 6 months from the date on which evidence sufficient in the opinion of the Board to justify initiating the proceedings, comes to the Board's knowledge, not being later than 5 years from the date on which the offence concerned was committed.”.

4 Amendment of section 5 of Principal Act.

4.—Section 5 of the Principal Act is hereby amended by the insertion of the following subsection after subsection (3):

“(4) (a) The Minister may, with the consent of the Minister for Equality and Law Reform, make regulations specifying guidelines for the purposes of section 12 and the reference in subsection (1) of the said section 12 to any relevant guidelines for the time being in force under section 10 (1) (c) shall be construed as a reference to any relevant guidelines specified as aforesaid and for the time being in force.

(b) Without prejudice to the generality of paragraph (a), guidelines specified by regulations under that paragraph may—

(i) make provision in relation to the manner in which a contingent benefit, a designated benefit, a residual benefit or a transfer amount payable under a scheme, the actuarial value referred to in subsection (10) of section 12 or the value and the amounts referred to in subsection (25) of section 12 should be calculated and, in particular, but without prejudice to the generality of the foregoing, provide that, in making such a calculation, regard should be had to one or more of the following:

(I) whether the scheme concerned is a defined contribution scheme or not,

(II) the amount of retirement benefit payable (or which, but for the making of the relevant order for the decree of judicial separation, would have been payable) under the scheme concerned to or in respect of the member spouse concerned,

(III) the period of reckonable service of the member spouse for the purposes of such retirement benefit,

(IV) the period concerned and the percentage concerned specified in the order concerned under subsection (2) of section 12 pursuant to paragraphs (i) and (ii) respectively, of that subsection,

(V) the value, the actuarial value or the accumulated value, as may be appropriate, of the whole or the appropriate part of such retirement benefit as aforesaid,

(VI) whether, at the date of the making of the relevant order under subsection (2) of section 12, the member spouse was an active member of the scheme concerned or was being paid retirement benefit, or was entitled to any other benefit payment of which is deferred, under the scheme concerned,

(VII) the amount of contingent benefit payable (or which, but for the making of the relevant order for the decree of judicial separation, would have been payable) under the scheme concerned on the death of the member spouse concerned,

(VIII) the percentage concerned specified in the order concerned under subsection (3) of section 12,

(ii) specify the manner in which a transfer amount should be applied under section 12,

(iii) specify the manner and the circumstances in which a contingent benefit, a designated benefit, a residual benefit or a transfer amount should be paid or applied pursuant to section 12 (including the period, and the manner of its ascertainment, during which such a payment should be made) and, in particular, but without prejudice to the generality of the foregoing, where—

(I) the member spouse concerned retires upon or before or after attaining normal pensionable age,

(II) the member spouse dies before payment of the designated benefit has commenced,

(III) the member spouse dies after payment of the designated benefit has commenced,

(IV) the member spouse ceases to be an active member of the scheme concerned,

(V) the person in whose favour the relevant order under subsection (2) of section 12 is made dies before payment of the designated benefit has commenced,

(VI) the person in whose favour the order aforesaid is made dies after payment of the designated benefit has commenced,

(VII) the person in whose favour the said order is made ceases to be a dependent member of the family as defined in section 2 of the Family Law Act, 1995,

(VIII) in the circumstances specified in subsection (5) of section 12, a spouse makes an application under that subsection,

(IX) the trustees of the scheme concerned apply the transfer amount concerned under or in accordance with subsection (6) or (8) of section 12,

and

(iv) make such other provision as may be necessary or expedient for the purposes of section 12 and for enabling it to have full effect.

(c) In making regulations under paragraph (a), regard shall be had to any relevant principles, purposes or policies of this Act, the Income Tax Acts, the Family Law Act, 1995, any relevant current practices of the Revenue Commissioners in approving schemes, any relevant guidelines, guidance notes or codes of practice of the Board and any relevant guidelines of the Society of Actuaries in Ireland for the time being in force and the desirability of promoting equity and consistency in the treatment of individual cases, minimising any costs incurred under section 12 and conforming with good pensions practice.

(d) In this subsection—

‘accumulated value’ means—

(i) the realisable value of the units, shares or securities at a particular date, or averaged over a particular period before that date in which, pursuant to the rules of the scheme, the contributions for retirement benefit paid by or in respect of a member spouse under the scheme are invested, or

(ii) the realisable value of the contributions for retirement benefit paid by or in respect of a member spouse under a defined contribution scheme, together with the notional rate of interest or other investment return prescribed under the rules of the scheme, or

(iii) the amount of the proceeds of any insurance policies in which, pursuant to the rules of the scheme, the contributions for retirement benefit paid by or in respect of a member spouse under the scheme are invested,

less, in each case, the amount of any of the expenses of the scheme that, pursuant to the rules thereof, fall to be discharged out of the said realisable value or proceeds;

‘active member’, ‘actuarial value’, ‘contingent benefit’, ‘defined contribution scheme’, ‘designated benefit’, ‘retirement benefit’, ‘scheme’ and ‘transfer amount’ have the meanings assigned to them by section 12;

‘residual benefit’ means the amount of retirement benefit remaining in respect of the member spouse concerned after deduction therefrom of the relevant designated benefit or the amount of contingent benefit in respect of the member spouse concerned remaining after deduction therefrom of the amount of contingent benefit payable pursuant to an order under subsection (3) of section 12 or the amount of payment made under subsection (7) of section 12;

‘section 12’ means section 12 of the Family Law Act, 1995.”.

5 Amendment of section 10 of Principal Act.

5.—Section 10(1) of the Principal Act is hereby amended by the substitution for paragraph (c) of the following paragraphs:

“(c) to issue guidelines or guidance notes on the duties and responsibilities of trustees of schemes and codes of practice on specific aspects of their responsibilities;

(cc) to issue guidelines or guidance notes generally on the operation of this Act and on the provisions of the Family Law Act, 1995, relating to pension schemes (within the meaning of section 2 of the Family Law Act, 1995);”.

6 Amendment of section 18 of Principal Act.

6.—(1) Section 18 of the Principal Act is hereby amended by—

(a) the substitution for subsection (1) of the following subsection:

“(1) The Board may authorise in writing such and so many persons as it considers necessary to be authorised persons to inspect or investigate on its behalf the state and conduct of a scheme.”,

(b) the substitution for subsection (3) of the following subsections:

“(3) An authorised person shall be furnished with a certificate of his appointment as an authorised person and when exercising any power conferred on him by this section as an authorised person shall, if requested by a person affected, produce the certificate or a copy thereof to the person.

(3A) An authorised person, for the purpose of obtaining any information which may be required by the Board in relation to a scheme, may—

(a) at all reasonable times enter the premises of any employer, trustee or agent, as the case may be,

(b) make such examination or inquiry as may be necessary to determine whether the provisions of this Act are being or have been complied with,

(c) inspect and take copies of or extracts from any records (including in the case of information in a non-legible form a copy of an extract from such information in permanent legible form) relating to the scheme,

(d) remove and retain any books of account and other documents and other records in relation to the scheme for a reasonable period for their further examination or for the purpose of any legal proceedings, and

(e) require any person by or on whose behalf data equipment is or has been used or any person having charge of, or otherwise concerned with the operation of, the data equipment or any associated apparatus or material, to afford him all reasonable assistance in relation thereto.”,

(c) the insertion after subsection (4) of the following subsections:

“(4A) An authorised person shall not, other than with the consent of the occupier, enter a private dwelling unless he has obtained a warrant from the District Court under subsection (4D) authorising such entry.

(4B) Where an authorised person in the exercise of his powers under this section is prevented from entering any premises an application may be made under subsection (4D) authorising such entry.

(4C) An authorised person, where he considers it necessary, may be accompanied by a member of the Garda Síochána when performing any powers conferred on an authorised person by this Act.

(4D) If a judge of the District Court is satisfied on the sworn information of an authorised person that there are reasonable grounds for suspecting that there is information required by an authorised person under this section held on any premises or any part of any premises, the judge may issue a warrant authorising an authorised person, accompanied by other authorised persons, at any time or times within one month from the date of issue of the warrant, on production if so requested of the warrant, to enter the premises and exercise all or any of the powers conferred on an authorised person under this section.”, and

(d) the insertion after subsection (7) of the following subsections:

“(8) The Board may prepare or cause to have prepared one or more reports on any investigation carried out under this section and may make a copy of any such report available to any person whom the Board considers appropriate.

(9) For the purposes of the law of defamation, the publication by the Board of any report prepared under this section shall be absolutely privileged.”.

(2) An authorised person authorised under section 18 (1) of the Principal Act and holding office immediately before the passing of this Act shall continue in office as if authorised under the said subsection (1) inserted by this section.

7 Amendment of section 24 of Principal Act.

7.—Section 24 (1) of the Principal Act is hereby amended by the insertion after “or member of the staff of,” of “or member of a committee of,”.

8 Amendment of section 26 of Principal Act.

8.—Section 26 of the Principal Act is hereby amended by—

(a) the insertion after subsection (2) of the following proviso:

“Provided that representations at an oral hearing shall be made in accordance with any procedure prescribed under subsection (6).”,

(b) the insertion in subsection (4) (a) after “to any such question” of “or to do both”, and

(c) the insertion in subsection (6) after “58” of “, 64A”.

9 Amendment of section 30 of Principal Act.

9.—Section 30 of the Principal Act is hereby amended by—

(a) the insertion in subsection (1) of the following definition before the definition of “appropriate contributions”:

“‘accumulated value’ of any appropriate contributions means the amount which the trustees determine to be equal to—

(a) the realisable value of the resources of the scheme, in accordance with the rules of the scheme, which represent those contributions, less

(b) the amount of any of the expenses of the scheme which, under the rules of the scheme, are to be discharged out of those resources;”,

and

(b) the substitution for subsection (7) of the following subsection:

“(7) Where benefits under a scheme are secured under one or more policies of assurance, the realisable value, on the date on which payment of preserved benefit commences, of the resources of the scheme which represent the appropriate contributions paid by or on behalf of a member shall, for the purposes of this Part, be the proportion of the proceeds of every such policy applicable to those contributions.”.

10 Amendment of section 32 of Principal Act.

10.—Section 32 of the Principal Act is hereby amended by the insertion of the following subsection:

“(2) A member of a scheme, who would be entitled to preserved benefit under the scheme in accordance with the provisions of this Part if his service in relevant employment were to terminate, shall not be entitled to receive a refund of any contributions paid to that scheme after the 1st day of January, 1991.”.

11 Amendment of section 33 of Principal Act.

11.—Section 33 of the Principal Act is hereby amended by the insertion in subsection (4) after “(in this Act referred to as ‘the revaluation percentage’)” of “which shall determine the amount”.

12 Amendment of section 34 of Principal Act.

12.—Section 34 of the Principal Act is hereby amended by—

(a) the insertion in paragraph (a) of subsection (2) after “preserved benefit” of “, and of any amount payable under section 29 (4),”,

(b) the deletion in subsection (2) of the proviso, and

(c) the substitution for subsection (3) of the following subsection:

“(3) A member of a scheme who is entitled to a transfer payment under subsection (2) may exercise such right by making an application in writing to the trustees of the scheme providing them with such information as they may reasonably require and directing them to apply the transfer payment—

(a) in the making of a payment to another funded scheme which provides or is capable of providing long service benefit and of which he is a member or a prospective member, or

(b) in the making of one or more payments falling to be made under policies or contracts of assurance that are effected on behalf of the member with one or more undertakings (within the meaning of the Insurance Act, 1989) and that are approved of by the Revenue Commissioners under Chapter II of Part I of the Finance Act, 1972, which policies or contracts of assurance shall not be deemed to be an occupational pension scheme for the purposes of this Act.”.

13 Amendment of section 36 of Principal Act.

13.—The Principal Act is hereby amended by the insertion in section 36 of the following subsection:

“(2) Notwithstanding paragraph (a) of subsection (1) where a member of a scheme or such other person who is entitled to preserved benefit is or becomes bankrupt (within the meaning of the Bankruptcy Act, 1988), or assigns or charges or attempts to assign or charge the benefit, the trustees of the scheme may, at their discretion, apply any provision of the scheme, under which a benefit may be forfeited and paid, to the member or such other person specified in the provision.”.

14 Amendment of section 37 of Principal Act.