Pensions Act 2004

(6A) For the purposes of this section, a relevant event occurs in relation to the employer in relation to an occupational pension scheme if and when— (a) an insolvency event occurs in relation to the employer, (b) the trustees or managers of the scheme make an application under subsection (1) of section 129 of the 2004 Act or receive a notice from the Board of the Pension Protection Fund under subsection (5)(a) of that section, or (c) a resolution is passed for a voluntary winding up of the employer in a case where a declaration of solvency has been made under section 89 of the Insolvency Act 1986 (members' voluntary winding up). (6B) For the purposes of this section— (a) a “cessation notice”, in the case of a relevant event within subsection (6A)(a), means— (i) a withdrawal notice issued under section 122(2)(b) of the 2004 Act (scheme rescue has occurred), (ii) a withdrawal notice issued under section 148 of that Act (no insolvency event has occurred or is likely to occur), (iii) a notice issued under section 122(4) of that Act (inability to confirm status of scheme) in a case where the notice has become binding and section 148 of that Act does not apply, (b) a “cessation notice” in the case of a relevant event within subsection (6A)(b), means a withdrawal notice issued under section 130(3) of the 2004 Act (scheme rescue has occurred), (c) a cessation event occurs in relation to a scheme when a cessation notice in relation to the scheme becomes binding, (d) the occurrence of a cessation event in relation to a scheme in respect of a cessation notice issued during a particular period (“the specified period”) is a possibility until each of the following are no longer reviewable— (i) any cessation notice which has been issued in relation to the scheme during the specified period, (ii) any failure to issue such a cessation notice during the specified period, (iii) any notice which has been issued by the Board under Chapter 2 or 3 of Part 2 of the 2004 Act which is relevant to the issue of a cessation notice in relation to the scheme during the specified period or to such a cessation notice which has been issued during that period becoming binding, (iv) any failure to issue such a notice as is mentioned in sub-paragraph (iii), (e) the issue or failure to issue a notice is to be regarded as reviewable— (i) during the period within which it may be reviewed by virtue of Chapter 6 of Part 2 of the 2004 Act, and (ii) if the matter is so reviewed, until— (a) the review and any reconsideration, (b) any reference to the Ombudsman for the Board of the Pension Protection Fund in respect of the matter, and (c) any appeal against his determination or directions, has been finally disposed of, and (f) a “scheme failure notice” means a scheme failure notice issued under section 122(2)(a) or 130(2) of the 2004 Act (scheme rescue not possible). (6C) For the purposes of this section— (a) section 121 of the 2004 Act applies for the purposes of determining if and when an insolvency event has occurred in relation to the employer, (b) “appointed day” means the day appointed under section 126(2) of the 2004 Act (no pension protection under Chapter 3 of Part 2 of that Act if the scheme begins winding up before the day appointed by the Secretary of State), (c) references to a relevant event in relation to an employer do not include a relevant event which occurred in relation to him before he became the employer in relation to the scheme, (d) references to a cessation notice becoming binding are to the notice in question mentioned in subsection (6B)(a) or (b) and issued under Part 2 of the 2004 Act becoming binding within the meaning given by that Part of that Act, and (e) references to a scheme failure notice becoming binding are to the notice in question mentioned in subsection (6B)(f) and issued under Part 2 of the 2004 Act becoming binding within the meaning given by that Part of that Act. (6D) Where— (a) a resolution is passed for a voluntary winding up of the employer in a case where a declaration of solvency has been made under section 89 of the Insolvency Act 1986 (members' voluntary winding up), and (b) either— (i) the voluntary winding up of the employer is stayed other than in prescribed circumstances, or (ii) a meeting of creditors is held in relation to the employer under section 95 of that Act (creditors' meeting which has the effect of converting a members' voluntary winding up into a creditors' voluntary winding up), this section has effect as if that resolution had never been passed and any debt which arose under this section by virtue of the passing of that resolution shall be treated as if it had never arisen.

• (6) Omit subsection (9).

Debt due from the employer in the case of multi-employer schemes

272

After section 75 of the Pensions Act 1995 (c. 26) (deficiencies in the assets) insert—

(75A) (1) Regulations may modify section 75 (deficiencies in the assets) as it applies in relation to multi-employer schemes. (2) The regulations may in particular provide for the circumstances in which a debt is to be treated as due under section 75 from an employer in relation to a multi-employer scheme (a “multi-employer debt”). (3) Those circumstances may include circumstances other than those in which the scheme is being wound up or a relevant event occurs (within the meaning of section 75). (4) For the purposes of regulations under this section, regulations under section 75(5) may prescribe alternative manners for determining, calculating and verifying— (a) the liabilities and assets of the scheme to be taken into account, and (b) their amount or value. (5) The regulations under this section may in particular— (a) provide for the application of each of the prescribed alternative manners under section 75(5) to depend upon whether prescribed requirements are met; (b) provide that, where in a particular case a prescribed alternative manner under section 75(5) is applied, the Authority may in prescribed circumstances issue a direction— (i) that any resulting multi-employer debt is to be unenforceable for such a period as the Authority may specify, and (ii) that the amount of the debt is to be re-calculated applying a different prescribed manner under section 75(5) if prescribed requirements are met within that period. (6) The prescribed requirements mentioned in subsection (5) may include a requirement that a prescribed arrangement, the details of which are approved in a notice issued by the Authority, is in place. (7) The regulations may provide that the Authority may not approve the details of such an arrangement unless prescribed conditions are met. (8) Those prescribed conditions may include a requirement that— (a) the arrangement identifies one or more persons to whom the Authority may issue a contribution notice under the regulations, and (b) the Authority are satisfied of prescribed matters in respect of each of those persons. (9) For the purposes of subsection (8) a “contribution notice” is a notice stating that the person to whom it is issued is under a liability to pay the sum specified in the notice— (a) to the trustees of the multi-employer scheme in question, or (b) where the Board of the Pension Protection Fund has assumed responsibility for the scheme in accordance with Chapter 3 of Part 2 of the Pensions Act 2004 (pension protection), to the Board. (10) The regulations may provide for the Authority to have power to issue a contribution notice to a person identified in an arrangement as mentioned in subsection (8) if— (a) the arrangement ceases to be in place or the Authority consider that the arrangement is no longer appropriate, and (b) the Authority are of the opinion that it is reasonable to impose liability on the person to pay the sum specified in the notice. (11) Where a contribution notice is issued to a person under the regulations as mentioned in subsection (8), the sum specified in the notice is to be treated as a debt due from that person to the person to whom it is to be paid as specified in the notice. (12) Where the regulations provide for the issuing of a contribution notice by the Authority as mentioned in subsection (8)— (a) the regulations must— (i) provide for how the sum specified by the Authority in a contribution notice is to be determined, (ii) provide for the circumstances (if any) in which a person to whom a contribution notice is issued is jointly and severally liable for the debt, (iii) provide for the matters which the notice must contain, and (iv) provide for who may exercise the powers to recover the debt due by virtue of the contribution notice, and (b) the regulations may apply with or without modifications some or all of the provisions of sections 47 to 51 of the Pensions Act 2004 (contribution notices where non-compliance with financial support direction) in relation to contribution notices issued under the regulations. (13) In this section “multi-employer scheme” means a trust scheme which applies to earners in employments under different employers. (14) This section is without prejudice to the powers conferred by— - section 75(5) (power to prescribe the manner of determining, calculating and verifying assets and liabilities etc), - section 75(10) (power to modify section 75 as it applies in prescribed circumstances), - section 118(1)(a) (power to modify any provisions of this Part in their application to multi-employer trust schemes), and - section 125(3) (power to extend for the purposes of this Part the meaning of “employer”).

Pension disputes

Resolution of disputes

273

For section 50 of the Pensions Act 1995 (c. 26) (resolution of disputes) substitute—

(50) (1) The trustees or managers of an occupational pension scheme must secure that dispute resolution arrangements complying with the requirements of this section are made and implemented. (2) Dispute resolution arrangements are arrangements for the resolution of pension disputes. (3) For this purpose a pension dispute is a dispute which— (a) is between— (i) the trustees or managers of a scheme, and (ii) one or more persons with an interest in the scheme (see section 50A), (b) is about matters relating to the scheme, and (c) is not an exempted dispute (see subsection (9)). (4) The dispute resolution arrangements must provide a procedure— (a) for any of the parties to the dispute mentioned in subsection (3)(a)(ii) to make an application for a decision to be taken on the matters in dispute (“an application for the resolution of a pension dispute”), and (b) for the trustees or managers to take that decision. (4A) The dispute resolution arrangements may make provision for securing that an application for the resolution of a pension dispute may not be made to the trustees or managers unless— (a) the matters in dispute have been previously referred to a person of a description specified in the arrangements (“the specified person”) in order for him to consider those matters, and (b) the specified person has given his decision on those matters, and for enabling the specified person's decision to be confirmed or replaced by the decision taken by the trustees or managers on the application, after reconsidering those matters. (5) Where an application for the resolution of a pension dispute is made in accordance with the dispute resolution arrangements, the trustees or managers must— (a) take the decision required on the matters in dispute within a reasonable period of the receipt of the application by them, and (b) notify the applicant of the decision within a reasonable period of it having been taken. (5A) In a case where a reference is made to the specified person in accordance with provision made under subsection (4A), subsection (5) applies in relation to the specified person as it applies in relation to the trustees or managers in a case where an application for the resolution of a pension dispute is made to them. (6) The procedure provided for by the dispute resolution arrangements in pursuance of subsection (4) must include the provision required by section 50B. (7) Dispute resolution arrangements under subsection (1) must, in the case of existing schemes, have effect on and after the date of commencement of this section in relation to applications made on or after that date. (8) This section does not apply in relation to an occupational pension scheme if— (a) every member of the scheme is a trustee of the scheme, (b) the scheme has no more than one member, or (c) the scheme is of a prescribed description. (9) For the purposes of this section a dispute is an exempted dispute if— (a) proceedings in respect of it have been commenced in any court or tribunal, (b) the Pensions Ombudsman has commenced an investigation in respect of it as a result of a complaint made or a dispute referred to him, or (c) it is of a prescribed description. (10) If, in the case of an occupational pension scheme, the dispute resolution arrangements required by this section to be made— (a) have not been made, or (b) are not being implemented, section 10 applies to any of the trustees or managers who have failed to take all reasonable steps to secure that such arrangements are made or implemented. (50A) (1) For the purposes of section 50 a person is a person with an interest in an occupational pension scheme if— (a) he is a member of the scheme, (b) he is a widow, widower or surviving dependant of a deceased member of the scheme, (c) he is a surviving non-dependant beneficiary of a deceased member of the scheme, (d) he is a prospective member of the scheme, (e) he has ceased to be within any of the categories of persons referred to in paragraphs (a) to (d), or (f) he claims to be such a person as is mentioned in paragraphs (a) to (e) and the dispute relates to whether he is such a person. (2) In subsection (1)(c) a “non-dependant beneficiary”, in relation to a deceased member of an occupational pension scheme, means a person who, on the death of the member, is entitled to the payment of benefits under the scheme. (3) In subsection (1)(d) a “prospective member” means any person who, under the terms of his contract of service or the rules of the scheme— (a) is able, at his own option, to become a member of the scheme, (b) will become so able if he continues in the same employment for a sufficiently long period, (c) will be admitted to the scheme automatically unless he makes an election not to become a member, or (d) may be admitted to it subject to the consent of his employer. (50B) (1) The procedure provided for by the dispute resolution arrangements in pursuance of section 50(4) must (in accordance with section 50(6)) include the following provision. (2) The procedure must provide that an application for the resolution of a pension dispute under section 50(4) may be made or continued on behalf of a person who is a party to the dispute mentioned in section 50(3)(a)(ii)— (a) where the person dies, by his personal representative, (b) where the person is a minor or is otherwise incapable of acting for himself, by a member of his family or some other person suitable to represent him, and (c) in any other case, by a representative nominated by him. (3) The procedure— (a) must include provision requiring an application to which subsection (3A) applies to be made by the end of such reasonable period as is specified; (b) may include provision about the time limits for making such other applications for the resolution of pension disputes as are specified. (3A) This subsection applies to— (a) any application by a person with an interest in a scheme as mentioned in section 50A(1)(e), and (b) any application by a person with an interest in a scheme as mentioned in section 50A(1)(f) who is claiming to be such a person as is mentioned in section 50A(1)(e). (4) The procedure must include provision about— (a) the manner in which an application for the resolution of a pension dispute is to be made, (b) the particulars which must be included in such an application, and (c) the manner in which any decisions required in relation to such an application are to be reached and given. (4A) The provision made under subsection (4)(c) may include provision for decisions of the trustees or managers to be taken on their behalf by one or more of their number. (5) The procedure must provide that if, after an application for the resolution of a pension dispute has been made, the dispute becomes an exempted dispute within the meaning of section 50(9)(a) or (b), the resolution of the dispute under the procedure ceases.

The Pensions Ombudsman

The Pensions Ombudsman and Deputy Pensions Ombudsmen

274

• (1) In subsection (2) of section 145 of the Pension Schemes Act 1993 (c. 48) (the Pensions Ombudsman) after “hold” insert “ and vacate ”.

• (2) For subsection (3) of that section substitute—

(3) The Pensions Ombudsman may resign or be removed from office in accordance with those terms and conditions.

• (3) After that section insert—

(145A) (1) The Secretary of State may appoint one or more persons to act as a deputy to the Pensions Ombudsman (“a Deputy Pensions Ombudsman”). (2) Any such appointment is to be upon such terms and conditions as the Secretary of State thinks fit. (3) A Deputy Pensions Ombudsman— (a) is to hold and vacate office in accordance with the terms and conditions of his appointment, and (b) may resign or be removed from office in accordance with those terms and conditions. (4) A Deputy Pensions Ombudsman may perform the functions of the Pensions Ombudsman— (a) during any vacancy in that office, (b) at any time when the Pensions Ombudsman is for any reason unable to discharge his functions, or (c) at any other time, with the consent of the Secretary of State. (5) References to the Pensions Ombudsman in relation to the performance of his functions are accordingly to be construed as including references to a Deputy Pensions Ombudsman in relation to the performance of those functions. (6) The Secretary of State may— (a) pay to or in respect of a Deputy Pensions Ombudsman such amounts— (i) by way of remuneration, compensation for loss of office, pension, allowances and gratuities, or (ii) by way of provision for any such benefits, as the Secretary of State may determine, and (b) reimburse the Pensions Ombudsman in respect of any expenses incurred by a Deputy Pensions Ombudsman in the performance of any of the Pensions Ombudsman’s functions.

• (4) In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 (c. 24) (other disqualifying offices), after “Pensions Ombudsman” insert “ and any deputy to that Ombudsman appointed under section 145A of the Pension Schemes Act 1993 ”.

• (5) In Part 3 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (c. 25)(other disqualifying offices), at the appropriate place insert— “ Pensions Ombudsman and any deputy to that Ombudsman appointed under section 145A of the Pension Schemes Act 1993. ”

• (6) The persons to whom section 1 of the Superannuation Act 1972 (c. 11) (persons to or in respect of whom benefits may be provided by schemes under that section) applies are to include a deputy to the Pensions Ombudsman.

• (7) The Pensions Ombudsman must pay to the Minister for the Civil Service, at such times as he may direct, such sums as he may determine in respect of the increase attributable to subsection (6) in the sums payable out of money provided by Parliament under that Act.

• (8) The Pensions Ombudsman must also pay to the Minister for the Civil Service, at such times as he may direct, such sums as he may determine in respect of the amount payable out of money provided by Parliament under that Act which is attributable to the following persons being persons to whom section 1 of that Act applies—

• (a) the Pensions Ombudsman;

• (b) the employees of the Pensions Ombudsman.

Jurisdiction

275

• (1) After section 146(4) of the Pension Schemes Act 1993 (c. 48) (power to apply Part 10 of that Act to those concerned with the administration of a scheme) insert—

(4A) For the purposes of subsection (4) a person or body of persons is concerned with the administration of an occupational or personal pension scheme where the person or body is responsible for carrying out an act of administration concerned with the scheme.

• (2) The amendment made by this section has effect in relation to the making of any provision under section 146(4) of the Pension Schemes Act 1993 applying Part 10 of that Act in relation to a complaint or a dispute in so far as it relates to a matter which arises on or after the day on which this section comes into force.

• (3) For the purposes of subsection (2), a question falling within section 146(1)(g) of the Pension Schemes Act 1993 is to be treated as a dispute.

Investigations

276

• (1) Omit section 54 of the Child Support, Pensions and Social Security Act 2000 (c. 19) (“the 2000 Act”) (which amends sections 148, 149 and 151 of the Pension Schemes Act 1993 and which has not been brought into force except for the purpose of making regulations and rules).

• (2) Omit the following provisions of the Pension Schemes Act 1993—

• (a) section 148(5)(ba) and (bb) as inserted by section 54(2) of the 2000 Act,

• (b) section 149(1), (1A) and (1B) as substituted by section 54(3) of the 2000 Act,

• (c) section 149(3)(ba) as substituted by section 54(4) of the 2000 Act,

• (d) section 149(3)(d) and the word “and” immediately preceding it as inserted by section 54(5) of the 2000 Act,

• (e) section 149(8) as inserted by section 54(6) of the 2000 Act,

• (f) section 151(1)(c) and the word “and” immediately preceding it as inserted by section 54(7) of the 2000 Act,

• (g) section 151(3)(ba) and (bb) as substituted by section 54(8) of the 2000 Act, and

• (h) in section 151(3)(c) the words “any of paragraphs (a) to (bb)” as inserted by section 54(8) of the 2000 Act,

to the extent that those amendments made by section 54 of the 2000 Act have been brought into force for the purpose of making regulations and rules.

Pension compensation

Amendments relating to the Pensions Compensation Board

277

• (1) The Pensions Act 1995 (c. 26) is amended as follows.

• (2) In section 80 (review of decisions of the Pensions Compensation Board)—

• (a) after subsection (2) insert—

(2A) The Compensation Board may also review such a determination without an application being made.

, and

• (b) for subsections (4) and (5) substitute—

(4) Regulations may make provision— (a) with respect to reviews under this section (or any corresponding provision in force in Northern Ireland); (b) with respect to applications under subsection (2) (or any corresponding provision in force in Northern Ireland) and the procedure to be adopted on any such application.

• (3) In section 81 (cases where compensation provisions apply), omit subsections (1)(d), (2A) and (7).

• (4) In section 83 (amount of compensation) for subsections (3) and (4) substitute—

(3) The amount of the payment, or (if there is more than one) the aggregate, must not exceed the aggregate of— (a) the amount (if any) by which the shortfall at the application date exceeds the recoveries of value made between the application date and the settlement date, and (b) interest at the prescribed rate for the prescribed period on the amount of that excess (if any).

Annual increases in rate of pensions

Annual increase in rate of certain occupational pensions

278

• (1) Section 51 of the Pensions Act 1995 (annual increase in rate of certain occupational pensions) is amended in accordance with subsections (2) to (6).

• (2) In subsection (1)—

• (a) omit “and” at the end of sub-paragraph (i) of paragraph (a),

• (b) at the end of sub-paragraph (ii) of that paragraph insert—

(iii) in the case where the pension becomes a pension in payment on or after the commencement day, is not a money purchase scheme, and

, and

• (c) for paragraph (b) substitute—

(b) the whole, or any part of, the pension is attributable— (i) to pensionable service on or after the appointed day, or (ii) in the case of money purchase benefits where the pension is in payment before the commencement day, to payments in respect of employment carried on on or after the appointed day, and (c) apart from this section— (i) the annual rate of the pension, or (ii) if only part of the pension is attributable as described in paragraph (b), so much of the annual rate as is attributable to that part, would not be increased each year by at least the appropriate percentage of that rate.

• (3) In subsection (2) after “money purchase benefits” insert “ where the pension is in payment before the commencement day ”.

• (4) In subsection (4)(b) for “5 per cent per annum” substitute

— (i) in the case of a category X pension, 5% per annum, and (ii) in the case of a category Y pension, 2.5% per annum.

• (5) After subsection (4) insert—

(4A) For the purposes of this section, a pension is a category X pension if it is— (a) a pension which became a pension in payment before the commencement day, or (b) a pension— (i) which becomes a pension in payment on or after the commencement day, and (ii) the whole of which is attributable to pensionable service before that day. (4B) For the purposes of this section, a pension is a category Y pension if it is a pension— (a) which becomes a pension in payment on or after the commencement day, and (b) the whole of which is attributable to pensionable service on or after the commencement day. (4C) For the purposes of applying this section in the case of a pension— (a) which becomes a pension in payment on or after the commencement day, (b) part of which is attributable to pensionable service before the commencement day, and (c) part of which is attributable to pensionable service on or after that day, each of those parts of the pension is to be treated as if it were a separate pension.

• (6) In subsection (5)—

• (a) for “the provisions of subsections (2) and (3)” substitute “ any of the provisions of this section ”, and

• (b) in paragraph (a), after “appointed day” insert “ or the commencement day ”.

• (7) After that section insert—

(51ZA) (1) For the purposes of section 51(1)(c) and (2), “the appropriate percentage” in relation to an increase in the whole or part of the annual rate of a pension— (a) in the case of a category X pension, means the revaluation percentage for the latest revaluation period specified in the order under paragraph 2 of Schedule 3 to the Pension Schemes Act 1993 (revaluation of accrued pension benefits) which is in force at the time of the increase, and (b) in the case of a category Y pension, means whichever is the lesser of— (i) the revaluation percentage for the latest revaluation period specified in the order under paragraph 2 of Schedule 3 to the Pension Schemes Act 1993 which is in force at the time of the increase, and (ii) 2.5%. (2) In this section “the revaluation percentage” and “the revaluation period” have the same meaning as in paragraph 2 of Schedule 3 to the Pension Schemes Act 1993.

• (8) In section 54(3) of that Act (sections 51 to 53: supplementary), at the appropriate place insert—

“the commencement day” means the day appointed for the coming into force of section 278 of the Pensions Act 2004 (amendments to section 51),

.

Annual increase in rate of certain personal pensions

279

• (1) Section 162 of the Pensions Act 1995 (c. 26) (annual increase in rate of certain personal pensions) is amended in accordance with subsection (2).

• (2) In subsection (1) omit “and” at the end of paragraph (a) and for paragraph (b) substitute—

(b) the pension became a pension in payment before the commencement day, (c) the whole, or any part of, the pension is attributable to contributions in respect of employment carried on on or after the appointed day, and (d) apart from this section— (i) the annual rate of the pension, or (ii) if only part of the pension is attributable as described in paragraph (c), so much of the annual rate as is attributable to that part, would not be increased each year by at least the appropriate percentage of that rate.

• (3) In section 163(3) of that Act (section 162: supplementary)—

• (a) in the definition of “appropriate percentage”, for the words from “revaluation period” to the end substitute “ latest revaluation period specified in the order under paragraph 2 of Schedule 3 to the Pension Schemes Act 1993 (revaluation of accrued pension benefits) which is in force at the time of the increase (expressions used in this definition having the same meaning as in that paragraph of that Schedule) ”, and

• (b) at the appropriate place insert—

“the commencement day” means the day appointed for the coming into force of section 279 of the Pensions Act 2004 (amendments to section 162),

.

Power to increase pensions giving effect to pension credits etc

280

• (1) Section 40 of the Welfare Reform and Pensions Act 1999 (c. 30) (power of the Secretary of State to increase pensions provided to give effect to certain rights) is amended as follows.

• (2) In subsection (1), for “5%” substitute “ the maximum percentage ”.

• (3) In subsection (2), for “This” substitute “ Subject to subsection (2A), this ”.

• (4) After subsection (2) insert—

(2A) Subsection (2) does not apply to pensions which— (a) are money purchase benefits, and (b) become pensions in payment on or after the commencement day. (2B) For the purposes of subsection (1) the “maximum percentage” means— (a) 5% in a case where— (i) the pension is in payment before the commencement day, or (ii) the pension is not in payment before the commencement day but the entitlement to the relevant pension credit arose before that day, and (b) 2.5% in a case where the entitlement to the relevant pension credit arises on or after the commencement day.

• (5) In subsection (3), at the appropriate places insert—

“commencement day” means the day appointed for the coming into force of section 280 of the Pensions Act 2004 (amendments to section 40);

“money purchase benefit” has the meaning given by section 181(1) of the Pension Schemes Act 1993;

“relevant pension credit” means the pension credit to which the eligible pension credit rights or, as the case may be, the safeguarded rights are (directly or indirectly) attributable;

.

Revaluation

Exemption from statutory revaluation requirement

281

• (1) Section 84 of the Pension Schemes Act 1993 (c. 48) (basis of revaluation) is amended as follows.

• (2) In subsection (5), after paragraph (a) insert

or (b) under any arrangement which maintains the value of the pension or other benefit by reference to the rise in the retail prices index during that period,

.

• (3) After that subsection add—

(6) In subsection (5)(b), “retail prices index” means— (a) the general index of retail prices (for all items) published by the Office for National Statistics, or (b) where that index is not published for a month, any substituted index or figures published by that Office.

Contracting out

Meaning of “working life” in Pension Schemes Act 1993

282

In section 181 of the Pension Schemes Act 1993 (c. 48) (general interpretation), in subsection (1) for the definition of “working life” substitute—

“working life”, in relation to a person, means the period beginning with the tax year in which the person attains the age of 16 and ending with— (a) the tax year before the one in which the person attains the age of 65 in the case of a man or 60 in the case of a woman, or (b) if earlier, the tax year before the one in which the person dies.

Power to prescribe conditions by reference to Inland Revenue approval

283

In section 9 of the Pension Schemes Act 1993 (requirements for certification of schemes: general), after subsection (5) insert—

(5A) Regulations about pension schemes made under this Chapter may contain provisions framed by reference to whether or not a scheme— (a) is approved under Chapter 1 (retirement benefit schemes) of Part 14 of the Income and Corporation Taxes Act 1988, or is a relevant statutory scheme within the meaning of that Chapter, or (b) is approved under Chapter 4 (personal pension schemes) of that Part.

Restrictions on commutation and age at which benefits may be received

284

• (1) For section 21(1) of the Pension Schemes Act 1993 (commutation of guaranteed minimum pensions) substitute—

(1) A scheme may, in such circumstances and subject to such restrictions and conditions as may be prescribed, provide for the payment of a lump sum instead of a pension required to be provided by the scheme in accordance with section 13 or 17.

• (2) In section 17 of that Act (minimum pensions for widows and widowers), at the end insert—

(8) Where— (a) a lump sum is paid to an earner under provisions included in a scheme by virtue of section 21(1), and (b) those provisions are of a prescribed description, the earner shall be treated for the purposes of this section as having any guaranteed minimum under section 14 that he would have had but for that payment.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Stakeholder pensions

Meaning of “stakeholder pension scheme”

285

• (1) Section 1 of the Welfare Reform and Pensions Act 1999 (c. 30) (meaning of “stakeholder pension scheme”) is amended in accordance with subsections (2) to (4).

• (2) In subsection (1) (requirements to be met by stakeholder pension schemes), in paragraph (a) for “to (9)” substitute “ to (10) ”.

• (3) In subsection (5) (prescribed requirements relating to administrative expenses of scheme), in paragraph (a) for “by or on behalf of” substitute “ by, or on behalf or in respect of, ”.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part 6 — Financial assistance scheme for members of certain pension schemes

Financial assistance scheme for members of certain pension schemes

286

• (1) The Secretary of State must make provision, by regulations, for a scheme for making payments to, or in respect of, qualifying members of qualifying pension schemes (“the financial assistance scheme”).

• (1A) The Secretary of State must, in particular, make provision for securing that (subject to any relevant restriction) the aggregate amount of—

• (a) any annual payment payable to a qualifying member of such a scheme, and

• (b) the member's actual pension (if any),

is not less than 80% of the member's expected pension, irrespective of the date of his attaining normal retirement age (or the date when he would have attained that age if he dies before attaining it).

• (1B) A “relevant restriction” means any provision of the regulations which—

• (a) operates to restrict the amount of an annual payment by means of a cap on the product of the calculation of a specified fraction of the member's expected pension, or

• (b) provides for an annual payment not to be payable where the member's actual pension exceeds any specified amount.

• (1C) Regulations under subsection (1) may prescribe circumstances in which subsection (1A) does not apply.

• (2) For the purposes of this section—

• “actual pension” and “expected pension”, in relation to a qualifying member of a qualifying pension scheme, mean the amounts which, in accordance with regulations under subsection (1), are to be taken into account as the member's actual pension and expected pension, respectively, in determining the amount of any annual payment payable to the member;

• “annual payment” has the meaning given by regulations under subsection (1);

• “qualifying member”, in relation to a qualifying pension scheme, means a person who, at such time as may be prescribed, is a member of the scheme or has ceased to be a member of the scheme,and in respect of whom prescribed conditions are satisfied at such time as may be prescribed;

• “qualifying pension scheme” means an occupational pension scheme (including such a scheme which has been fully wound up)—which, at such time as may be prescribed, is not—a money purchase scheme, ora scheme of a prescribed description,the winding up of which began , subject to any prescribed exception, during the prescribed period ending immediately before the day appointed under section 126(2),the employer in relation to which satisfies such conditions as may be prescribed at such time as may be prescribed, andprescribed details of which have been notified to such person as may be prescribed by a person of a prescribed description—in the prescribed form and manner, andbefore the prescribed date;

• ...

• ...

• (3) Regulations under subsection (1) may, in particular, make provision—

• (a) for the financial assistance scheme to be managed by the Secretary of State, a body established by or for the purposes of the regulations or such other person as may be prescribed;

• (b) for the person who manages the financial assistance scheme (“the scheme manager”) to hold (whether on trust or otherwise), manage and apply a fund in accordance with the regulations or, where the fund is held on trust, the deed of trust;

• (c) for the property, rights and liabilities of qualifying pension schemes to be transferred to a prescribed person in prescribed circumstances and for the trustees or managers of a qualifying pension scheme in respect of which such a transfer has occurred to be discharged from prescribed liabilities;

• (d) prescribing the circumstances in which payments are to be made by the scheme manager to, or in respect of, qualifying members of qualifying pension schemes and the manner in which the amount of any payment is to be determined, and, where the fund is held by the fund manager on trust, the circumstances and manner may be prescribed by reference to the deed of trust;

• (e) authorising the Secretary of State—

• (i) where he is not the scheme manager, to pay grants to the scheme manager;

• (ii) where he is the scheme manager, to pay amounts into the fund held by him in accordance with the regulations;

• (iii) to pay grants to other prescribed persons in connection with the financial assistance scheme;

• (f) prescribing the circumstances in which amounts are to be paid into or out of the fund held by the scheme manager;

• (g) for or in connection with—

• (i) the review of, or appeals against, any determination, or failure to make a determination, in connection with the financial assistance scheme, or

• (ii) the investigation of complaints relating to the financial assistance scheme,

and for the establishment of a body or the appointment of a person or persons to hear such appeals or conduct such investigations;

• (h) conferring functions in relation to the financial assistance scheme on the Pensions Regulator or the Board of the Pension Protection Fund;

• (i) providing for a person to exercise a discretion in dealing with any matter in relation to the financial assistance scheme;

• (j) applying any provision of Part 1 or 2 with such modifications as may be prescribed;

and such regulations may make different provision for different cases or descriptions of case and include such incidental, supplementary, consequential or transitional provision as appears to the Secretary of State to be expedient.

• (4) Any amount which, by virtue of subsection (3)(e), the Secretary of State pays under regulations under subsection (1) is to be to paid out of money provided by Parliament.

• (5) Regulations under subsection (1) may not make provision for the imposition of a levy or charge on any person for the purpose of funding, directly or indirectly, the financial assistance scheme.

• (6) Regulations under subsection (1) may not require any income or capital of a qualifying member of a qualifying pension scheme (other than income or capital which derives, directly or indirectly, from that scheme) to be taken into account when determining whether the member is entitled to a payment under the financial assistance scheme or the amount of any payment to which the member is entitled.

• (7) For the purposes of subsection (6), regulations may prescribe the circumstances in which a qualifying member of a qualifying pension scheme is to be regarded as having income or capital which derives, directly or indirectly, from that scheme.

• (8) A time or period prescribed under subsection (2) may fall (or, in the case of a period, wholly or partly fall) at a time before the passing of this Act.

• (9) Nothing in this section prejudices the operation of section 315 (subordinate legislation (general provisions)).

Part 7 — Cross-border activities within European Union

UK occupational pension scheme receiving contributions from European employer

Occupational pension scheme receiving contributions from European employer

287

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

General authorisation to accept contributions from European employers

288

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Approval in relation to particular European employer

289

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Notification of legal requirements of host member State outside United Kingdom

290

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duty of trustees or managers to act consistently with law of host member State

291

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power of Regulator to require ring-fencing of assets

292

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

European occupational pension scheme receiving contributions from UK employer

Functions of Regulator in relation to institutions administered in other member States

293

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Assistance for other European regulators

Stopping disposal of assets of institutions administered in other member States

294

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Interpretation

Interpretation of Part

295

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part 8 — State pensions

Entitlement to more than one pension

Persons entitled to more than one Category B retirement pension

296

In section 43(3) of the Social Security Contributions and Benefits Act 1992 (c. 4) (persons entitled to more than one retirement pension)—

• (a) for paragraph (a) substitute—

(a) to both a Category A retirement pension and one or more Category B retirement pensions under this Part for the same period, (aa) to more than one Category B retirement pension (but not a Category A retirement pension) under this Part for the same period, or

, and

• (b) for the words from “paragraph (a)” to “above” substitute “ paragraph (a), (aa) or (b) (as the case may be) ”.

Deferral of state pension

Deferral of retirement pensions and shared additional pensions

297

• (1) For section 55 of the Social Security Contributions and Benefits Act 1992 (increase of retirement pension where entitlement is deferred) substitute—

(55) (1) Where a person’s entitlement to a Category A or Category B retirement pension is deferred, Schedule 5 to this Act has effect. (2) In that Schedule— - paragraph A1 makes provision enabling an election to be made where the pensioner’s entitlement is deferred - paragraphs 1 to 3 make provision about increasing pension where the pensioner’s entitlement is deferred - paragraphs 3A and 3B make provision about lump sum payments where the pensioner’s entitlement is deferred - paragraph 3C makes provision enabling an election to be made where the pensioner’s deceased spouse has deferred entitlement - paragraphs 4 to 7 make provision about increasing pension where the pensioner’s deceased spouse has deferred entitlement - paragraphs 7A and 7B make provision about lump sum payments where the pensioner’s deceased spouse has deferred entitlement - paragraphs 7C to 9 make supplementary provision. (3) For the purposes of this Act a person’s entitlement to a Category A or Category B retirement pension is deferred if and so long as that person— (a) does not become entitled to that pension by reason only— (i) of not satisfying the conditions of section 1 of the Administration Act (entitlement to benefit dependent on claim), or (ii) in the case of a Category B retirement pension payable by virtue of a spouse’s contributions, of the spouse not satisfying those conditions with respect to his Category A retirement pension, or (b) in consequence of an election under section 54(1), falls to be treated as not having become entitled to that pension, and, in relation to any such pension, “period of deferment” shall be construed accordingly.

• (2) For section 55C of that Act (increase of shared additional pension where entitlement is deferred) substitute—

(55C) (1) Where a person’s entitlement to a shared additional pension is deferred, Schedule 5A to this Act has effect. (2) In that Schedule— - paragraph 1 makes provision enabling an election to be made where the person’s entitlement is deferred - paragraphs 2 and 3 make provision about increasing pension where the person’s entitlement is deferred - paragraphs 4 and 5 make provision about lump sum payments where the person’s entitlement is deferred. (3) For the purposes of this Act, a person’s entitlement to a shared additional pension is deferred— (a) where he would be entitled to a Category A or Category B retirement pension but for the fact that his entitlement is deferred, if and so long as his entitlement to such a pension is deferred, and (b) otherwise, if and so long as he does not become entitled to the shared additional pension by reason only of not satisfying the conditions of section 1 of the Administration Act (entitlement to benefit dependent on claim), and, in relation to a shared additional pension, “period of deferment” shall be construed accordingly.

• (3) In paragraph 6 of Schedule 4 to the Pensions Act 1995 (c. 26) (which, with effect from 6th April 2010, amends the existing law regarding the deferment of pensions), for sub-paragraph (5) (commencement) substitute—

(5) The preceding sub-paragraphs shall come into force as follows— (a) sub-paragraphs (1) and (4) shall come into force on 6th April 2005; (b) sub-paragraphs (2) and (3) shall have effect in relation to incremental periods (within the meaning of Schedule 5 to the Social Security Contributions and Benefits Act 1992 (c. 4)) beginning on or after that date.

• (4) Schedule 11 (which contains further amendments relating to the deferral of retirement pensions and shared additional pensions) has effect.

Miscellaneous

Disclosure of state pension information

298

• (1) Section 42 of the Child Support, Pensions and Social Security Act 2000 (c. 19) (disclosure of state pension information) is amended as follows.

• (2) In subsection (2), for the words from the beginning to “information”, substitute, “ The Secretary of State may, in the prescribed manner, disclose or authorise the disclosure of any information ”.

• (3) After subsection (3) insert—

(3A) For the purposes of this section and of any regulations made under it, anything done by or in relation to a person who— (a) provides, or proposes to provide, relevant services to a person falling within subsection (3) (“the qualifying person”), and (b) is authorised in writing by the qualifying person to act for the purposes of this section, is treated as done by or in relation to the qualifying person. In paragraph (a) “relevant services” means services that may involve the giving of advice or forecasts to which information to which this section applies may be relevant.

• (4) In subsection (7)—

• (a) omit the “and” at the end of paragraph (c), and

• (b) after paragraph (d) insert—, and

(e) a projection of the amount of any lump sum to which that individual is likely to become entitled, or might become entitled in particular circumstances.

• (5) In subsection (11)—

• (a) for the definitions of “basic retirement pension” and “additional retirement pension”, substitute—

“additional retirement pension” means any additional pension or shared additional pension under the Social Security Contributions and Benefits Act 1992, or any graduated retirement benefit under sections 36 and 37 of the National Insurance Act 1965; “basic retirement pension” means any basic pension under the Social Security Contributions and Benefits Act 1992;

,

• (b) after the definition of “employer”, insert—

“lump sum” means a lump sum under Schedule 5 or 5A to the Social Security Contributions and Benefits Act 1992;

, and

• (c) for the definitions of “trustee” and “manager”, substitute—

“trustee or manager”, in relation to an occupational or personal pension scheme, means— (a) in the case of a scheme established under a trust, the trustee or trustees of the scheme, and (b) in any other case, the person or persons responsible for the management of the scheme.

Claims for certain benefits following termination of reciprocal agreement with Australia

299

• (1) This section applies to claims for—

• (a) retirement pension,

• (b) bereavement benefit, or

• (c) widow’s benefit,

made on or after 1st March 2001 (the date from which the termination of the reciprocal agreement with Australia had effect).

• (2) This section also applies to claims for retirement pension or widow’s benefit made before 1st March 2001 if the claimant only became entitled to the pension or benefit on or after that date.

• (3) For the purposes of such claims—

• (a) the relevant provisions of the reciprocal agreement with Australia shall be treated as continuing in force as provided by this section; and

• (b) the relevant UK legislation shall have effect as if modified to the extent required to give effect to those provisions (as they continue in force by virtue of this section).

• (4) The relevant provisions of that agreement are treated as continuing in force as follows—

• (a) references to periods during which a person was resident in Australia are only to periods spent in Australia before 6th April 2001 and forming part of a period of residence in Australia which began before 1st March 2001;

• (b) Articles 3(3) and 5(2) (entitlement by virtue of previous receipt of pension in Australia) apply only to persons who were last in Australia during a period falling within paragraph (a) above;

• (c) references to the territory of the United Kingdom do not include the islands of Jersey, Guernsey, Alderney, Herm or Jethou;

• (d) references to widow’s benefit, widow’s payment, widow’s pension and widowed mother’s allowance include, respectively, bereavement benefit, bereavement payment, bereavement allowance and widowed parent’s allowance;

• (e) for the purposes of claims by a widower—

• (i) for retirement pension by virtue of his wife’s insurance, or

• (ii) for bereavement benefit,

references to widows and husbands include, respectively, widowers and wives.

• (5) An order made under—

• (a) section 179 of the Social Security Administration Act 1992 (c. 5), or

• (b) section 155 of the Social Security Administration (Northern Ireland) Act 1992 (c. 8),

may, in consequence of a change in the law of Great Britain or, as the case may be, Northern Ireland, modify the relevant provisions of the reciprocal agreement with Australia as they are treated as continuing in force for the purposes of claims to which this section applies.

• (6) For the purposes of this section—

• (a) “the reciprocal agreement with Australia” means the agreement set out in Schedule 1 to the Social Security (Australia) Order 1992 (S.I. 1992/ 1312) and the Social Security (Australia) Order (Northern Ireland) 1992 (S.R. 1992 No. 269) (as amended by the exchange of notes set out in Schedule 3 to those Orders);

• (b) “the relevant provisions” of that agreement are the provisions of Articles 1, 3, 5, 8, 18, 20 and 24, so far as they relate to the United Kingdom;

• (c) “the relevant UK legislation” is—

• (i) the Social Security Contributions and Benefits Act 1992 (c. 4);

• (ii) the Social Security Administration Act 1992;

• (iii) the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (c. 7); and

• (iv) the Social Security Administration (Northern Ireland) Act 1992;

and, for the purposes of subsection (5), a change in the law of Great Britain or Northern Ireland includes any change made after the date of the reciprocal agreement with Australia.

• (7) In this section—

• “retirement pension” has the meaning given by the reciprocal agreement with Australia;

• “bereavement benefit” means bereavement payment, widowed parent’s allowance or bereavement allowance payable under the Social Security Contributions and Benefits Act 1992 or the Social Security Contributions and Benefits (Northern Ireland) Act 1992;

• “widow’s benefit” means widow’s payment, widowed mother’s allowance or widow’s pension payable under either of those Acts.

• (8) This section shall be deemed to have had effect at all times on and after 1st March 2001.

• (9) Nothing in this section affects Article 2(2) of the Social Security (Australia) Order 2000 (S.I. 2000/3255) or Article 2(2) of the Social Security (Australia) Order (Northern Ireland) 2000 (S.R. 2000 No. 407) (which provide for cases where a person was in receipt of benefit on 28th February 2001 or had claimed a benefit to which he was entitled on or before that date).

Part 9 — Miscellaneous and supplementary

Dissolution of existing bodies

Dissolution of OPRA

300

• (1) The Occupational Pensions Regulatory Authority (“OPRA”) is hereby dissolved.

• (2) An order under section 322 which appoints the day on which subsection (1) comes into force may provide—

• (a) for all property, rights and liabilities to which OPRA is entitled or subject immediately before that day to become the property, rights and liabilities of the Regulator or the Secretary of State, and

• (b) for any function of OPRA falling to be exercised on or after that day, or which fell to be exercised before that day but has not been exercised, to be exercised by the Regulator, the Secretary of State or the Department for Social Development in Northern Ireland.

• (3) Subject to subsection (4), information obtained by the Regulator by virtue of subsection (2) is to be treated for the purposes of sections 82 to 87 (disclosure of information) as having been obtained by the Regulator in the exercise of its functions from the person from whom OPRA obtained it.

• (4) Information obtained by the Regulator by virtue of subsection (2) which was supplied to OPRA for the purposes of its functions by an authority exercising functions corresponding to the functions of OPRA in a country or territory outside the United Kingdom (the “overseas authority”) is to be treated for the purposes mentioned in subsection (3) as having been supplied to the Regulator for the purposes of its functions by the overseas authority.

• (5) Where tax information disclosed to OPRA is obtained by the Regulator by virtue of subsection (2), subsection (3) does not apply and subsections (3) and (4) of section 88 apply as if that information had been disclosed to the Regulator by virtue of subsection (2) of that section.

For this purpose “tax information” has the same meaning as in that section.

Transfer of employees from OPRA to the Regulator

301

• (1) For the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (S.I. 1981/1794) (“TUPE”), the transfer of functions from OPRA to the Regulator (“the transfer”) is to be treated as a transfer of an undertaking.

• (2) The provisions of Regulation 7 of TUPE (exclusion of occupational pension schemes) shall not apply in relation to the transfer.

Dissolution of the Pensions Compensation Board

302

• (1) The Pensions Compensation Board is hereby dissolved.

• (2) An order under section 322 appointing the day on which subsection (1) is to come into force may provide—

• (a) for all property, rights and liabilities to which the Pensions Compensation Board is entitled or subject immediately before that day to become property, rights and liabilities of the Board, and

• (b) for any function of the Pensions Compensation Board falling to be exercised on or after that day, or which fell to be exercised before that day but has not been exercised, to be exercised by the Board.

• (3) Information obtained by the Board by virtue of subsection (2) is to be treated for the purposes of sections 197 to 201 and 203 (disclosure of information) as having been obtained by the Board in the exercise of its functions from the person from whom the Pensions Compensation Board obtained it.

• (4) Where tax information disclosed to the Pensions Compensation Board is obtained by the Board by virtue of subsection (2), subsection (3) does not apply, and subsections (3) and (4) of section 202 apply as if that information had been disclosed to the Board by virtue of subsection (2) of that section.

For this purpose “tax information” has the same meaning as in that section.

• (5) Where the Pensions Compensation Board’s disclosure under section 114(3) of the Pensions Act 1995 (c. 26) of information to which subsection (3) applies was subject to any express restriction, the Board’s powers of disclosure under sections 198 to 201 and 203, in relation to that information, are subject to the same restriction.

Service of notifications etc and electronic working

Service of notifications and other documents

303

• (1) This section applies where provision made (in whatever terms) by or under this Act authorises or requires—

• (a) a notification to be given to a person, or

• (b) a document of any other description (including a copy of a document) to be sent to a person.

• (2) The notification or document may be given to the person in question—

• (a) by delivering it to him,

• (b) by leaving it at his proper address, or

• (c) by sending it by post to him at that address.

• (3) The notification or document may be given or sent to a body corporate by being given or sent to the secretary or clerk of that body.

• (4) The notification or document may be given or sent to a firm by being given or sent to—

• (a) a partner in the firm, or

• (b) a person having the control or management of the partnership business.

• (5) The notification or document may be given or sent to an unincorporated body or association by being given or sent to a member of the governing body of the body or association.

• (6) For the purposes of this section and section 7 of the Interpretation Act 1978 (c. 30) (service of documents by post) in its application to this section, the proper address of a person is—

• (a) in the case of a body corporate, the address of the registered or principal office of the body,

• (b) in the case of a firm, or an unincorporated body or association, the address of the principal office of the firm, body or association,

• (c) in the case of any person to whom the notification or other document is given or sent in reliance on any of subsections (3) to (5), the proper address of the body corporate, firm or (as the case may be) other body or association in question, and

• (d) in any other case, the last known address of the person in question.

• (7) In the case of—

• (a) a company registered outside the United Kingdom,

• (b) a firm carrying on business outside the United Kingdom, or

• (c) an unincorporated body or association with offices outside the United Kingdom,

the references in subsection (6) to its principal office include references to its principal office within the United Kingdom (if any).

• (8) In this section “notification” includes notice; and references in this section to sending a document to a person include references to making an application to him.

• (9) This section has effect subject to section 304.

Notification and documents in electronic form

304

• (1) This section applies where—

• (a) section 303 authorises the giving or sending of a notification or other document by its delivery to a particular person (“the recipient”), and

• (b) the notification or other document is transmitted to the recipient—

• (i) by means of an electronic communications network, or

• (ii) by other means but in a form that nevertheless requires the use of apparatus by the recipient to render it intelligible.

• (2) The transmission has effect for the purposes of this Act as a delivery of the notification or other document to the recipient, but only if the requirements imposed by or under this section are complied with.

• (3) Where the recipient is a relevant authority—

• (a) it must have indicated its willingness to receive the notification or other document in a manner mentioned in subsection (1)(b),

• (b) the transmission must be made in such manner, and satisfy such other conditions, as it may require, and

• (c) the notification or other document must take such form as it may require.

• (4) Where the person making the transmission is a relevant authority, it may (subject to subsection (5)) determine—

• (a) the manner in which the transmission is made, and

• (b) the form in which the notification or other document is transmitted.

• (5) Where the recipient is a person other than a relevant authority—

• (a) the recipient, or

• (b) the person on whose behalf the recipient receives the notification or other document,

must have indicated to the person making the transmission the recipient’s willingness to receive notifications or documents transmitted in the form and manner used.

• (6) An indication given to any person for the purposes of subsection (5)—

• (a) must be given to that person in such manner as he may require,

• (b) may be a general indication or one that is limited to notifications or documents of a particular description,

• (c) must state the address to be used and must be accompanied by such other information as that person requires for the making of the transmission, and

• (d) may be modified or withdrawn at any time by a notice given to that person in such manner as he may require.

• (7) An indication, requirement or determination given, imposed or made by a relevant authority for the purposes of this section is to be given, imposed or made by being published in such manner as it considers appropriate for bringing it to the attention of the persons who, in its opinion, are likely to be affected by it.

• (8) Where both the recipient and the person making the transmission are relevant authorities—

• (a) subsections (3) and (4) do not apply, and

• (b) the recipient must have indicated to the person making the transmission the recipient’s willingness to receive notifications or documents transmitted in the form and manner used.

• (9) Subsection (8) of section 303 applies for the purposes of this section as it applies for the purposes of that section.

• (10) In this section, “relevant authority” means the Regulator, the Board or the Secretary of State and in the application of this section to Northern Ireland by virtue of section 323(2)(g)(ii) also includes the Department for Social Development in Northern Ireland.

• (11) In this section and section 305, “electronic communications network” has the same meaning as in the Communications Act 2003 (c. 21).

Timing and location of things done electronically

305

• (1) The Secretary of State may by order make provision specifying, for the purposes of any enactment contained in, or made under, this Act, the manner of determining—

• (a) the times at which things done under that enactment by means of electronic communications networks are done, and

• (b) the places at which such things are so done, and at which things transmitted by means of such networks are received.

• (2) The provision made under subsection (1) may include provision as to the country or territory in which an electronic address is to be treated as located.

• (3) An order made by the Secretary of State may also make provision about the manner of proving in any legal proceedings—

• (a) that something done by means of an electronic communications network satisfies the requirements of an enactment contained in, or made under, this Act for the doing of that thing, and

• (b) the matters mentioned in subsection (1)(a) and (b).

• (4) An order under this section may provide for such presumptions to apply (whether conclusive or not) as the Secretary of State considers appropriate.

General

Overriding requirements

306

• (1) Where any provision mentioned in subsection (2) conflicts with the provisions of an occupational or personal pension scheme—

• (a) the provision mentioned in subsection (2), to the extent that it conflicts, overrides the provisions of the scheme, and

• (b) the scheme has effect with such modifications as may be required in consequence of paragraph (a).

• (2) The provisions referred to in subsection (1) are those of—

• (a) any order made by the Regulator under Part 1;

• (b) any regulations made under section 19(7);

• (c) any regulations made under section 21(4);

• (d) any regulations made under section 24(7);

• (da) any direction issued by the Regulator under section 39A(6);

• (e) any direction issued by the Regulator under section 41(4);

• (ea) any direction issued by the Regulator under section 43A(3);

• (f) any direction issued by the Regulator under section 50(4);

• (g) Part 2 (other than Chapter 1), any subordinate legislation made under that Part and any direction given under section 134 or 154;

• (h) Part 3 and any subordinate legislation made under that Part;

• (i) any regulations under section 237;

• (j) sections 241 and 242, any regulations made under sections 241 to 243 and any arrangements under sections 241 and 242;

• (k) sections 247 and 248 and any regulations under sections 247 to 249;

• (l) sections 256 and 258;

• (m) any ring-fencing notice issued by the Regulator under section 292;

• (n) any regulations under section 286, 307, 308, 315(6) or 318(4) or (5) and any order under section 322(5).

• (3) Subsection (1) is without prejudice to section 32(1) (overriding effect of freezing orders made by the Regulator) and section 154(12) (overriding effect of requirement to wind up pension scheme under Part 2).

• (4) In the case of a company to which section 242 (requirement for member-nominated directors of corporate trustees) applies, where any provision mentioned in subsection (5) conflicts with the provisions of the company’s articles of association—

• (a) the provision mentioned in subsection (5), to the extent that it conflicts, overrides the provisions of the articles, and

• (b) the articles have effect with such modifications as may be required in consequence of paragraph (a).

• (5) The provisions referred to in subsection (4) are those of—

• (a) section 242;

• (b) any regulations made under section 242 or 243;

• (c) any arrangements under section 242.

Modification of this Act in relation to certain categories of schemes

307

• (1) Regulations may modify any of the provisions mentioned in subsection (2) as it applies in relation to—

• (a) hybrid schemes;

• (b) multi-employer schemes;

• (c) any case where a partnership is the employer, or one of the employers, in relation to an occupational pension scheme.

• (2) The provisions referred to in subsection (1) are those of—

• (a) Part 1 (the Pensions Regulator),

• (b) Part 2 (the Board of the Pension Protection Fund), other than Chapter 1,

• (ba) Part 3 (scheme funding),

• (c) sections 257 and 258 (pension protection),

• (d) sections 259 and 261 (consultation by employers),

• (e) section 286 (financial assistance scheme for members of certain pension schemes), ...

• (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Regulations may also modify any of the provisions of Part 2 as it applies in relation to an eligible scheme in respect of which a relevant public authority has—

• (a) given a guarantee in relation to any part of the scheme, any benefits payable under the scheme rules or any member of the scheme, or

• (b) made any other arrangements for the purposes of securing that the assets of the scheme are sufficient to meet any part of its liabilities.

• (4) In this section—

• “eligible scheme” has the meaning given by section 126;

• “hybrid scheme” means an occupational pension scheme—which is not a money purchase scheme, butwhere some of the benefits that may be provided are—money purchase benefits attributable to voluntary contributions of the members, orother money purchase benefits;

• “multi-employer scheme” means an occupational pension scheme in relation to which there is more than one employer;

• “relevant public authority” means—a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975 (c. 26)),a government department (including any body or authority exercising statutory functions on behalf of the Crown), orthe Scottish Ministers.

Modification of pensions legislation that refers to employers

308

• (1) Regulations may modify any provision of pensions legislation for the purpose of ensuring that it, or another provision of pensions legislation, does not purport to refer to the employer of a self-employed person.

• (2) Where a provision of pensions legislation contains a reference to an employer in connection with an occupational pension scheme, regulations may modify the provision, or another provision of pensions legislation, for the purpose of excluding from the reference an employer who is a person—

• (a) who does not participate in the scheme as regards people employed by him, or

• (b) who, as regards people employed by him, participates in the scheme only to a limited extent.

• (3) For the purposes of this section—

• (a) “pensions legislation” means any enactment contained in or made by virtue of—

• (i) the Pension Schemes Act 1993 (c. 48),

• (ii) Part 1 of the Pensions Act 1995 (c. 26), other than sections 62 to 66A of that Act (equal treatment),

• (iii) Part 1 of the Welfare Reform and Pensions Act 1999 (c. 30), or

• (iv) this Act;

• (b) a person is “self-employed” if he is in an employment but is not employed in it by someone else;

• (c) a person who holds an office (including an elective office), and is entitled to remuneration for holding it, shall be taken to be employed by the person responsible for paying the remuneration.

• (4) In subsection (3)(b) “employment” includes any trade, business, profession, office or vocation.

Offences by bodies corporate and partnerships

309

• (1) Where an offence under this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

• (2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as to a director of a body corporate.

• (3) Where an offence under this Act committed by a Scottish partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.

• (4) In this section “Scottish partnership” means a partnership constituted under the law of Scotland.

Admissibility of statements

310

• (1) A statement made by a person in compliance with an information requirement is admissible in evidence in any proceedings, so long as it also complies with any requirements governing the admissibility of evidence in the circumstances in question.

• (2) But in proceedings to which this subsection applies—

• (a) no evidence relating to the statement may be adduced, and

• (b) no question relating to it may be asked,

by or on behalf of the prosecution or (as the case may be) the Regulator, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.

• (3) Subsection (2) applies to—

• (a) criminal proceedings in which that person is charged with a relevant offence, or

• (b) proceedings as a result of which that person may be required to pay a financial penalty on a relevant ground under or by virtue of—

• (ai) section 88A (financial penalties),

• (bi) section 238G (penalties for contravention of regulations under section 238D),

• (i) section 168 of the Pension Schemes Act 1993 (breach of regulations),

• (ia) section 10 of the Pensions Act 1995 (civil penalties),

• (ib) paragraph 10 of Schedule 17 to the Pensions Act 2014 (penalties for contravention of regulations etc),

• (ic) paragraph 3 of Schedule 18 to that Act (penalties for contravention of regulations etc),

• (ii) section 164 of the Pension Schemes (Northern Ireland) Act 1993 (c. 49) (breach of regulations),

• (iii) Article 10 of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (civil penalties),

• (iv) Article 83A of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1)) (financial penalties),

• (v) Article 215G of that Order (penalties for contravention of regulations under Article 215D),

• (vi) paragraph 10 of Schedule 17 to the Pensions Act (Northern Ireland) 2015 (c. 5 (N.I.)) (penalties for contravention of regulations etc), or

• (vii) paragraph 3 of Schedule 18 to that Act (penalties for contravention of regulations etc).

• (3A) For the purposes of this section a financial penalty is payable on a relevant ground if it is payable otherwise than under—

• (a) section 88A as it applies by virtue of—

• (i) section 80A (financial penalty for providing false or misleading information to Regulator), or

• (ii) section 80B (financial penalty for providing false or misleading information to trustees or managers), or

• (b) Article 83A of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1)) as it applies by virtue of—

• (i) Article 75A of that Order (financial penalty for providing false or misleading information to Regulator), or

• (ii) Article 75B of that Order (financial penalty for providing false or misleading information to trustees or managers).

• (4) In this section—

• “information requirement” means any statement made in compliance with any duty imposed by or by virtue of—section 64 (duties of trustees or managers to provide scheme return);section 70 (duty to report breaches of the law);section 72 (requirement to provide information to the Regulator); section 72A (requirement to attend interview etc); section 75 (inspection of premises: powers of inspectors to examine etc);section 78(2)(d) (power of inspector entering under warrant to require a person to provide an explanation of a document);section 190 (information to be provided to the Board);section 191 (notices requiring provision of information to the Board etc);section 192 (entry of premises: powers of appointed persons to examine etc);section 194(2)(d) (power of inspector entering under warrant to require a person to provide an explanation of a document);section 209 (power to make order enabling PPF Ombudsman to obtain information, documents etc);section 213 or 214 (disclosure of information on references made to PPF Ombudsman);section 228 (failure to make payments in accordance with schedule of contributions);paragraph 19 of Schedule 1 (power to make regulations enabling Regulator to summon persons to give evidence before it);paragraph 11 of Schedule 4 (the Pensions Regulator Tribunal: evidence);Tribunal Procedure Rules so far as applying to decisions of the Regulator;

• “relevant offence” means any offence other than one under—section 77 (neglect or refusal to provide information etc to the Regulator);section 80 (providing false or misleading information to the Regulator);section 193 (neglect or refusal to provide information etc to the Board);section 195 (providing false or misleading information to the Board);any provision in force in Northern Ireland corresponding to a provision mentioned in paragraphs (a) to (d);section 5 of the Perjury Act 1911 (c. 6) (false statements made otherwise than on oath);section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39) (false statements made otherwise than on oath);Article 10 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 (N.I. 19)).

Protected items

311

• (1) A person may not be required under or by virtue of this Act to produce, disclose or permit the inspection of protected items.

• (2) For this purpose “protected items” means—

• (a) communications between a professional legal adviser and his client or any person representing his client which fall within subsection (3);

• (b) communications between a professional legal adviser, his client or any person representing his client and any other person which fall within subsection (3) (as a result of paragraph (b) of that subsection);

• (c) items which—

• (i) are enclosed with, or referred to in, such communications,

• (ii) fall within subsection (3), and

• (iii) are in the possession of a person entitled to possession of them.

• (3) A communication or item falls within this subsection if it is made—

• (a) in connection with the giving of legal advice to the client, or

• (b) in connection with, or in contemplation of, legal proceedings and for the purpose of those proceedings.

• (4) A communication or item is not a protected item if it is held with the intention of furthering a criminal purpose.

Liens

312

If a person claims a lien on a document, its production under any provision made by or by virtue of this Act does not affect the lien.

Crown application

313

• (1) In this section “the relevant provisions” means—

• (a) Parts 1 to 5,

• (b) sections 306, 307, 310, 311, 312, 314, 315, 318(4) and (5) and 322(5).

• (2) The relevant provisions apply to a pension scheme managed by or on behalf of the Crown as they apply to other pension schemes; and, accordingly, references in those provisions to a person in his capacity as a trustee or manager of, or person prescribed in relation to, a pension scheme include the Crown, or a person acting on behalf of the Crown, in that capacity.

• (3) The relevant provisions apply to persons employed by or under the Crown in like manner as if such persons were employed by a private person; and references in those provisions to a person in his capacity as an employer include the Crown, or a person acting on behalf of the Crown in that capacity.

• (4) This section does not apply to any of the relevant provisions under or by virtue of which a person may be prosecuted for an offence; but such a provision applies to persons in the public service of the Crown as it applies to other persons.

• (5) Nothing in the relevant provisions applies to Her Majesty in Her private capacity (within the meaning of the Crown Proceedings Act 1947 (c. 44)).

Regulations and orders

Breach of regulations

314

The following provisions of the Pensions Act 1995 (c. 26) apply to regulations under this Act as if they were regulations made by virtue of Part 1 of that Act—

• (a) section 10(3) to (9) (power to impose civil penalties for contravention of regulations under Part 1 of that Act);

• (b) section 116 (power to provide for contravention of regulations under that Part to be criminal offence).

Subordinate legislation (general provisions)

315

• (1) Any power conferred by this Act to make subordinate legislation is exercisable by statutory instrument, except any order-making power conferred on the Regulator.

• (2) Any power conferred by this Act to make subordinate legislation may be exercised—

• (a) either in relation to all cases to which the power extends, or in relation to those cases subject to specified exceptions, or in relation to any specified cases or descriptions of case;

• (b) so as to make, as respects the cases in relation to which it is exercised—

• (i) the full provision to which the power extends or any lesser provision (whether by way of exceptions or otherwise),

• (ii) the same provision for all cases in relation to which the power is exercised, or different provision for different cases or different descriptions of case or different provision as respects the same case or description of case for different purposes of this Act, or

• (iii) any such provision either unconditionally or subject to any specified condition.

• (3) Any power conferred by this Act to make subordinate legislation—

• (a) if it is expressed to be exercisable for alternative purposes, may be exercised in relation to the same case for any or all of those purposes, and

• (b) if it is conferred for the purposes of any one provision of this Act, is without prejudice to any power to make subordinate legislation for the purposes of any other provision.

• (4) A power conferred by this Act to make subordinate legislation includes power to provide for a person to exercise a discretion in dealing with any matter.

• (5) Any power conferred by this Act to make subordinate legislation also includes power to make such incidental, supplementary, consequential or transitional provision as appears to the authority making the subordinate legislation to be expedient.

• (6) Regulations may, for the purposes of or in connection with the coming into force of any provisions of this Act, make any such provision as could be made by virtue of section 322(5) by an order bringing those provisions into force.

Parliamentary control of subordinate legislation

316

• (1) Subject to subsections (2) , (2A) and (3), a statutory instrument containing regulations or an order or rules under this Act is subject to annulment in pursuance of a resolution of either House of Parliament.

• (2) A statutory instrument which contains—

• (za) regulations under section 38A(10) or 38B(13) (section 38 contribution notices: “the material detriment test”);

• (zaa) regulations under section 38E(2)(a) (section 38 contribution notice: constitution of resources of employer);

• (zab) regulations under section 38E(2)(b) (section 38 contribution notice: valuation of resources of employer);

• (zb) regulations under section 39A(5), 39B(8) or 43B(8) (contribution notices and financial support directions: bulk transfers);

• (zc) regulations under section 58A(1) (offence of avoidance of employer debt: power to except certain schemes);

• (zd) regulations under section 58B(1) (offence of conduct risking accrued scheme benefits: power to except certain schemes);

• (ze) regulations under section 58C(1) (financial penalty for avoidance of employer debt: power to except certain schemes);

• (zf) regulations under section 58D(1) (financial penalty for conduct risking accrued scheme benefits: power to except certain schemes);

• (zg) regulations under section 73(5B)(a) (inspection of premises: power to specify provisions by reference to which there may be inspection);

• (zh) regulations under section 88A(3) (financial penalties: power to amend maximum amount of penalty);

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) regulations under section 167 (modification of Chapter 3 of Part 2 where liabilities discharged during the assessment period);

• (c) regulations under section 174 (the initial levy);

• (d) regulations under section 175 (pension protection levies);

• (e) an order under section 177(6) (orders relating to amounts to be raised by pension protection levies);

• (f) an order under section 178(1) (the levy ceiling) which is made by virtue of section 178(8) ;

• (g) an order or regulations under section 209 (the PPF Ombudsman);

• (h) regulations under section 213 (reference of reviewable matter to the PPF Ombudsman);

• (i) regulations under section 214 (investigation by PPF Ombudsman of complaints of maladministration);

• (ia) the first regulations under section 221A(4)(a) and (b) (funding and investment strategy: matters to be taken into account etc and level of detail);

• (ib) the first regulations under section 221B(2)(d) (Part 2 of statement of strategy: additional matters to be included);

• (ic) the first regulations under section 221B(8)(a) and (b) (Part 2 of statement of strategy: matters to be taken into account etc and level of detail);

• (j) regulations under section 237 (combined pension forecasts);

• (k) regulations under section 238 (information and advice to employees);

• (ka) regulations under section 238A (qualifying pensions dashboard service);

• (kb) regulations under section 238D (information from occupational pension schemes);

• (kc) regulations under section 238G (compliance with regulations under section 238D);

• (l) an order under section 243(1) (power to provide for minimum fraction of member-nominated trustees or directors to be one-half);

• (m) regulations which make provision by virtue of section 261(2)(f) (power to make amendments etc to certain Acts);

• (n) regulations under section 286 (financial assistance scheme for members of certain pension schemes) , except regulations prescribing an exception for the purposes of paragraph (b) of the definition of “qualifying pension scheme” in subsection (2) of that section;

• (na) regulations under section 286A(11) (power to provide that references in section 286A to the scheme manager are to have effect as references to a prescribed person);

• (o) regulations which make provision by virtue of section 314(b) (power to provide for contravention of regulations to be criminal offence);

• (p) regulations under section 318(4)(b) (power to extend meaning of employer);