The Pension Protection Fund (Closed Schemes) Regulations (Northern Ireland) 2007

Made: 20th March 2007

Coming into operation: 6th April 2007

The Department for Social Development makes the following Regulations in exercise of the powers conferred by Articles 137(4) and (7), 140(1), (2) and (6), 141(1) and (7) and 287(2) and (3) of the Pensions (Northern Ireland) Order 2005[^f00001].

Citation, commencement and interpretation

1

• (1) These Regulations may be cited as the Pension Protection Fund (Closed Schemes) Regulations (Northern Ireland) 2007 and shall come into operation on 6th April 2007.

• (2) In these Regulations—

• “the Order” means the Pensions (Northern Ireland) Order 2005;

• “the appropriate person” means the actuary as defined in Article 140(6) (valuations of closed schemes);

• “Article 140 valuation” means an actuarial valuation under that Article;

• “closed scheme” and “closed section” shall be construed in accordance with Article 139 (treatment of closed schemes);

• “effective date” for the purposes of an Article 140 valuation, means the date by reference to which the assets were valued and the full scheme liabilities and the protected liabilities were calculated;

• “protected liabilities” has the meaning given by Article 115;

• “segregated scheme” means a multi-employer scheme which is divided into two or more sections where— any contributions payable to the scheme by an employer in relation to the scheme or by a member are allocated to that employer’s or that member’s section, and a specified proportion of the assets of the scheme is attributable to each section of the scheme and cannot be used for the purposes of any other section.

• (3) In these Regulations, in the case of a scheme which is a segregated scheme, where these Regulations apply to a section of a scheme which is for the purposes of Part III[^f00002] of the Order a closed section, for “closed scheme” and “scheme” substitute “closed section” and “section”.

• (4) In these Regulations, any reference to a numbered Article is a reference to the Article of the Order bearing that number.

Applications and determination notices under Article 137

2

• (1) An application to the Board for the purposes of Article 137(2) (closed schemes) shall be in writing and shall contain the following information—

• (a) a description of the type or purpose of the application;

• (b) the date on which the application is made;

• (c) where the application is made in respect of a scheme, the name, address and pension scheme registration number of that scheme;

• (d) where the application is made in respect of a section of a segregated scheme—

• (i) the name, address and pension scheme registration number of that scheme, and

• (ii) the name of the section;

• (e) a description by the trustees or managers of the scheme of the steps they have taken to obtain a full buy-out quotation in respect of that scheme, and—

• (i) the names and addresses of any persons they have approached for that purpose, and

• (ii) the date on which any such approach was made, and

• (f) where the Board does not already have the information, the name and address of each of the trustees or managers of that scheme.

• (2) An application to the Board for the purposes of Article 137 shall be accompanied by evidence in the following form—

• (a) a copy of any request made by the trustees or managers of the scheme in respect of which the application is made for a full buy-out quotation in respect of that scheme, and

• (b) a copy of any refusal given to those trustees or managers in response to such a request.

• (3) A determination notice issued by the Board under Article 137(6) shall be in writing and shall contain the following information—

• (a) the name or type of notice issued;

• (b) the date on which the notice is issued;

• (c) where the notice is issued in respect of a scheme, the name, address and pension scheme registration number of that scheme;

• (d) where the notice is issued in respect of a section of a segregated scheme—

• (i) the name, address and pension scheme registration number of that scheme, and

• (ii) the name of the section;

• (e) the Board’s determination to authorise or not to authorise the scheme to continue as a closed scheme, and

• (f) where the Board has authorised the scheme to continue as a closed scheme, an explanation of the provisions of—

• (i) Article 139 (treatment of closed schemes) in so far as they will operate while the scheme is a closed scheme;

• (ii) Article 140 (valuations of closed schemes) in so far as they will operate while that scheme is a closed scheme, and

• (iii) Article 141 (applications and notifications where closed schemes have insufficient assets) in so far as they will operate if at any time the trustees or managers of that scheme while it is a closed scheme become aware that the value of the assets of the scheme is less than the amount of the protected liabilities in relation to the scheme.

Obtaining of actuarial valuations of closed schemes

3

• (1) In this regulation—

• “the determination date” means the date immediately after—the expiry of the period within which the issue of the determination notice may be reviewed by virtue of Chapter 6 of Part III of the Order (reviews, appeals and maladministration), orif the issue of the notice is so reviewed—the review and any reconsideration;any reference to the PPF Ombudsman in respect of the issue of the notice, andany appeal against his determination or directions,has been finally disposed of and the notice has not been revoked, varied or substituted;

• “the relevant period” is the period of three years beginning immediately after the relevant time of the Board’s determination under Article 127(2)(a) or actuarial valuation of the scheme under Article 127(2)(b) (Board’s obligation to obtain valuation of assets and protected liabilities);

• “the relevant time” shall be construed in accordance with Article 127(11)(c).

• (2) The effective date of the first Article 140 valuation shall—

• (a) be within the relevant period, or

• (b) where the determination date did not fall within the relevant period, be within the period of 15 months beginning on the determination date.

• (3) Any subsequent Article 140 valuation shall have an effective date which is not more than three years after the effective date of the previous Article 140 valuation.

• (4) The trustees or managers of a closed scheme shall obtain any Article 140 valuation of the scheme within the period of 15 months after its effective date.

Valuation of the assets and liabilities of closed schemes

4

For the purposes of Article 140—

• (a) the assets, the full scheme liabilities and the protected liabilities in relation to a closed scheme, and

• (b) their value or amount,

shall be determined, calculated and verified in accordance with the provisions of the Schedule.

Prescribed qualifications for the purposes of Article 140

5

For the purposes of the definition of “the actuary” contained in Article 140(6), a person with prescribed qualifications is a Fellow of the Institute and Faculty of Actuaries.

Applications and notifications where closed schemes have insufficient assets

6

• (1) Where the trustees or managers of a closed scheme are required under Article 141(1) to make an application to the Board for it to assume responsibility for the scheme, they must do so within six months of the time when they become aware that the value of the assets of the scheme is less than the amount of the protected liabilities in relation to the scheme.

• (2) An application to the Board for the purposes of Article 141(1) shall be in writing and shall contain the following information—

• (a) a description of the type or purpose of the application;

• (b) the date on which the application is made;

• (c) where the application is made in respect of a scheme, the name, address and pension scheme registration number of that scheme;

• (d) where the application is made in respect of a section of a segregated scheme—

• (i) the name, address and pension scheme registration number of that scheme, and

• (ii) the name of the section;

• (e) a statement by the trustees or managers of the scheme in respect of which the application is made that the value of the assets of the scheme is less than the amount of the protected liabilities in relation to the scheme and the date on which they became so aware;

• (f) a statement by the trustees or managers of the scheme in respect of which the application is made whether or not they obtained advice from the appropriate person before they became aware that the value of the assets of the scheme is less than the amount of the protected liabilities in relation to the scheme;

• (g) a statement by the trustees or managers of the scheme in respect of which the application is made of—

• (i) the value of the assets of the scheme, and

• (ii) the amount of the protected liabilities in relation to the scheme, and

• (h) where the Board does not already have the information, the name and address of each of the trustees or managers of that scheme.

• (3) Where the Regulator becomes aware that the value of the assets of a closed scheme is less than the amount of the protected liabilities in relation to that scheme, the notice which the Regulator must give to the Board under Article 141(3) shall be in writing and shall contain the following information—

• (a) the name or type of notice given;

• (b) the date on which the notice is given;

• (c) where the notice is given in respect of a scheme, the name, address and pension scheme registration number of that scheme;

• (d) where the notice is given in respect of a section of a segregated scheme—

• (i) the name, address and pension scheme registration number of that scheme, and

• (ii) the name of the section;

• (e) a statement by the Regulator that it has become aware that the value of the assets of the scheme is less than the amount of the protected liabilities in relation to the scheme;

• (f) the date on which the Regulator became aware that the value of the assets of the scheme is less than the amount of the protected liabilities in relation to the scheme, and

• (g) where the Board does not already have the information, the name and address of each of the trustees or managers of that scheme.

• (4) Where the Board receives a notice from the Regulator to which paragraph (3) applies, the notice under Article 141(4) which the Board must give to the trustees or managers of the scheme in question shall be in writing and shall contain the following information—

• (a) the name or type of notice given;

• (b) the date on which the notice is given;

• (c) where the notice is given in respect of a scheme, the name, address and pension scheme registration number of that scheme;

• (d) where the notice is given in respect of a section of a segregated scheme—

• (i) the name, address and pension scheme registration number of that scheme, and

• (ii) the name of the section;

• (e) a statement that the Board received a notice from the Regulator under Article 141(3), the effect of that notice and the date on which it was given by the Regulator;

• (f) the address for communications at which the Board may be contacted in respect of the giving of the notice, and

• (g) whether the notice given by the Board contains any information which is restricted information under Article 179 (restricted information), and, if so, the nature of the restrictions.

Transitional provision for schemes with an assessment date before 1st April 2007

7

• (1) In this regulation, “assessment date” means the date on which the assessment period in relation to a scheme or closed scheme, or (where there has been more than one such assessment period) the last one, began.

• (2) In the case of a scheme or closed scheme with an assessment date before 1st April 2007, these Regulations shall have effect until 31st December 2007 as if for the definition of “relevant accounts” in paragraph 1 of the Schedule there were substituted—

• “relevant accounts” means— audited accounts for the scheme which are prepared in respect of a period ending with the effective date; if none are so prepared, the latest such accounts which are available at the effective date, or if the appropriate person’s opinion is that it is practicable to use them, the latest such accounts which are available on the date the appropriate person signs the Article 140 valuation;

SCHEDULE — VALUATION OF THE ASSETS, THE FULL SCHEME LIABILITIES AND THE PROTECTED LIABILITIES IN RELATION TO A CLOSED SCHEME

PART 1

1

In this Schedule—

• “Article 75 debt” means so much of the amount treated by Article 75[^f00005] of the 1995 Order (deficiencies in the assets) as a debt due from the employer to the trustees or managers at the applicable time;

• “contribution notice” means a notice issued under Article 34 (contribution notices where avoidance of employer debt), 43 (contribution notices where non-compliance with financial support direction) or 51 (contribution notice where failure to comply with restoration order);

• “financial support direction” means a direction issued under Article 39 (financial support directions);

• “pension credit rights” has the meaning given by Article 121(1)[^f00006] of the 1995 Order (interpretation of Part II);

• “pre-6th April 1997 contract of insurance” means a contract of insurance that—falls within the definition of a relevant contract of insurance in Article 145(8) (effect of Board assuming responsibility for a scheme);was taken out before 6th April 1997, andthe trustees or managers are, or should reasonably be aware of;

• “relevant accounts” for the purposes of identifying and valuing the assets of a scheme, means audited accounts for the scheme which—contain the information specified in Part 2 of this Schedule;show a true and fair view of—the financial transactions of the scheme during the period to which the accounts relate (“the accounting period”);the amount and disposition of the assets at the end of the accounting period, andthe liabilities of the scheme, other than the liabilities to pay pensions and benefits, after the end of the accounting period;include a report by the auditor in writing as to whether or not in his opinion the requirements of paragraphs (a) and (b) are satisfied, andare prepared in respect of a period ending with the effective date of the valuation;

• “restoration order” has the meaning given by Article 48 (restoration orders where transactions at an undervalue).

2

There shall be excluded from the value of the closed scheme’s assets—

• (a) any amounts treated as a debt due to the trustees or managers which are unlikely to be recouped without disproportionate cost or unlikely to be recovered within a reasonable time, and

• (b) an amount in respect of the value of any pre-6th April 1997 contract of insurance if—

• (i) the trustees or managers have taken all reasonable steps to obtain information concerning that contract of insurance (whether by searching the records of the scheme or otherwise), and

• (ii) the information they provide concerning that contract of insurance is insufficient, in the opinion of the appropriate person, to conduct a valuation.

3

Subject to paragraph 6(3) and (4), where the Regulator issues a contribution notice or a financial support direction or makes a restoration order in relation to a scheme prior to the effective date of the valuation, any amount due under such a notice, direction or order shall be regarded as an asset of the scheme.

4

Subject to paragraphs 2 and 6, in determining the value of the assets of a closed scheme for the purposes of an Article 140 valuation, the appropriate person shall adopt the value given of the assets of the scheme stated in the relevant accounts and that value shall be taken to be the value of those assets at the effective date.

5

• (1) Subject to paragraph 6, in the case of protected liabilities the amount of a protected liability shall be the estimated cost of securing scheme benefits calculated in accordance with Schedule 6 to the Order (pension compensation provisions) to the member by means of an annuity purchased at the market rate at the effective date.

• (2) Where paragraph 2(b) applies, the amount representing the value of a protected liability in respect of the benefits secured by a pre-6th April 1997 contract of insurance shall be excluded from the valuation of the scheme’s protected liabilities.

6

• (1) For the purposes of an Article 140 valuation, where for the purpose of giving effect to a pension sharing order or provision, arrangements are being made by the closed scheme for the transfer from it of any pension credit rights, until such time as the trustees or managers of the scheme to which the transfer is being made (“the receiving scheme”) have received assets of the full amount agreed by them as consideration for the transfer, it shall be assumed—

• (a) that the rights have not been transferred, and

• (b) that any assets transferred in respect of the transfer of those rights are assets of the scheme making the transfer and not of the receiving scheme.

• (2) For the purposes of an Article 140 valuation, in the case of a pre-6th April 1997 contract of insurance, the value shall be—

• (a) the amount of the liability secured where the contract of insurance falls within the definition of a relevant contract of insurance in Article 145(8), or where this is not the case either—

• (b) the surrender value of the contract of insurance, or

• (c) where it appears to the appropriate person that the surrender value of the contract of insurance does not accurately reflect the actual value at the effective date, then he shall adopt such a value as appears to him to be appropriate.

• (3) In the case of an asset to which paragraph 3 applies, the appropriate person shall adopt as the value of the asset the amount due to the closed scheme given in the notice, direction or order.