The Occupational and Personal Pension Schemes (Bankruptcy) (No. 2) Regulations 2002

Made: 26th March 2002

Laid before Parliament: 2nd April 2002

Coming into force: 6th April 2002

The Secretary of State for Work and Pensions, in exercise of powers conferred by sections 36C(4)(a) and (7) and (8) and 36F(3)(a) and (6) to (8) of the Bankruptcy (Scotland) Act 1985, sections 342C(4)(a) and (7) to (9) and 342F(6)(a) and (9) to (11) of the Insolvency Act 1986 and sections 11(2)(h), 12(1) to (3) and 83(1), (2), (4) and (6) of the Welfare Reform and Pensions Act 1999 and of all other powers enabling him in that behalf, hereby makes the following Regulations:

PART I — GENERAL

Citation, commencement, extent and interpretation

1

• (1) These Regulations, which supersede the Occupational and Personal Pension Schemes (Bankruptcy) Regulations 2002 , may be cited as the Occupational and Personal Pension Schemes (Bankruptcy) (No. 2) Regulations 2002 and shall come into force on 6th April 2002.

• (2) Part II of these Regulations applies to England and Wales.

• (3) Part III, and (by virtue of regulation 11 of that Part) regulation 2 of Part II, of these Regulations apply to Scotland.

• (4) In this paragraph and—

• (a) Parts II and III of these Regulations—

• “the 1999 Act” means the Welfare Reform and Pensions Act 1999;

• “income-related benefit” has the meaning given in section 123(1) of the Social Security Contributions and Benefits Act 1992 ;

• “the 2003 Act ” means the Income Tax (Earnings and Pensions) Act 2003;

• “relevant benefits” means any pension, lump sum, gratuity or other like benefit which is, or is to be, provided—by reason, or in anticipation, of retirement,by reason of death,by reason of a pension sharing order or provision,in connection with past service,after retirement or death,in anticipation of, or in connection with, any change in the nature of the service of the employee in question,but does not include any benefit which is to be provided solely by reason of the disablement or death due to an accident suffered by a person during his pensionable service;

• “the Taxes Act” means the Income and Corporation Taxes Act 1988 ;

• “week” means a period of seven days;

• (b) Part II of these Regulations—

• “the 1986 Act” means the Insolvency Act 1986;

• “court” means the court which made the bankruptcy order against the bankrupt;

• “destination arrangement” has the meaning given in section 342E(1)(b) of the 1986 Act ;

• “employer-financed retirement benefits scheme” has the same meaning given by section 393A of the 2003 Act (employer-financed retirement benefits scheme);

• “pension-sharing transaction” has the meaning given in section 342D(9) of the 1986 Act ;

• “responsible person” means the person responsible for a pension arrangement within the meaning of section 342C(6) of the 1986 Act;

• “restoration order” means an order made under section 342A of the 1986 Act ;

• “transferee” has the meaning given in section 342D(9) of the 1986 Act;

• “transferor” has the meaning given in section 342D(9) of the 1986 Act;

• (c) Part III of these Regulations—

• “the 1980 Act” means the Solicitors (Scotland) Act 1980 ;

• “the 1985 Act” means the Bankruptcy (Scotland) Act 1985;

• “court” means the sheriff before whom the sequestration is depending or to whom it has been transferred or remitted in terms of section 15 of the 1985 Act or, where a judicial factor has been appointed, the court which appointed the judicial factor;

• “debtor” has the meaning given in section 73 of the 1985 Act, and in relation to regulations 12 to 15 and 19 also includes a solicitor on whose estate a judicial factor has been appointed;

• “judicial factor” means a judicial factor appointed under section 41 of the 1980 Act ;

• “pension-sharing transaction” has the meaning given in section 36D(10) of the 1985 Act ;

• “permanent trustee” shall be construed in accordance with section 3 of the 1985 Act;

• “responsible person” means the person responsible for a pension arrangement within the meaning of section 36C(6) of the 1985 Act;

• “restoration order” means an order made under section 36A of the 1985 Act ;

• “transferee” has the meaning given in section 36D(10) of the 1985 Act;

• “transferor” has the meaning given in section 36D(10) of the 1985 Act.

PART II — ENGLAND AND WALES

Prescribed pension arrangements

2

• (1) The arrangements prescribed for the purposes of section 11(2)(h) of the 1999 Act (pension arrangements which are “approved pension arrangements”) are arrangements (including an annuity purchased for the purpose of giving effect to rights under any such arrangement)—

• (a) to which—

• (i) the holder of an office or employment has contributed by way of payments out of earnings which have been allowed as a deduction under paragraph 51 of Schedule 36 to the Finance Act 2004 (individuals with pre-commencement entitlement to corresponding relief),

• (ii) Article 17A of the Convention set out in the Schedule to the Double Taxation Relief (Taxes on Income) (Republic of Ireland) Order 1976 (pension scheme contributions) applies;

• (b) made with a scheme which is an occupational pension scheme—

• (i) registered under section 153 of the Finance Act 2004, or

• (ii) which is to be treated as becoming a registered pension scheme under section 153(9) of the Finance Act 2004 in accordance with Part 1 of Schedule 36 to that Act,

• (c) to which section 308A of the 2003 Act (exemption of contributions to overseas pension scheme) applies;

• (d) which are exempt or qualify for relief from, or are not liable to charge to, income tax by virtue of section 614 or 615 of the Taxes Act (exemptions and reliefs in respect of income from investments etc of certain pension schemes and other overseas pensions), or section 629, 630 or 643 of the 2003 Act (pre-1973 pensions paid under the Overseas Pensions Act 1973 and Malawi, Trinidad and Tobago and Zambia government pensions),

• (e) made with—

• (i) a public service pension scheme, or

• (ii) an occupational pension scheme established under the auspices of a government department or by any person acting on behalf of the Crown;

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

• (2) Paragraph (1)(e) above does not apply to any employer-financed retirement benefits scheme arrangement which has been provided to an employee as part of or in addition to any pension arrangement referred to in paragraph (1)(e) above.

• (3) For the purposes of this regulation—

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

• (b) “occupational pension scheme” has the meaning given in section 1 of the Pension Schemes Act 1993 ;

• (c) “public service pension scheme” has the meaning given in section 1 of the Pension Schemes Act 1993;

• (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Unapproved pension arrangements

3

• (1) For the purposes of section 12 of the 1999 Act (effect of bankruptcy on pension rights: unapproved arrangements), a pension arrangement falling within—

• (a) section 157 of the Finance Act 2004 (de-registration);

• (b) paragraphs 52 to 57 of Schedule 36 to that Act; or

• (c) section 393A of the 2003 Act,

shall be an “unapproved pension arrangement” if it satisfies the conditions specified in paragraph (2) below.

• (2) The conditions referred to in paragraph (1) above are that the pension arrangement—

• (a) is established under—

• (i) an irrevocable trust, or

• (ii) a contract, agreement or arrangement made with the bankrupt;

• (b) has as its primary purpose the provision of relevant benefits; and

• (c) is the bankrupt’s sole pension arrangement or his main means of pension provision (other than a pension under Part II of the Social Security Contributions and Benefits Act 1992 (contributory benefits) or Part II of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (contributory benefits)).

• (3) For the purposes of section 12(2)(c) of the 1999 Act, the prescribed person shall be the responsible person.

Exclusion of rights under unapproved pension arrangements

4

For the purpose of excluding his rights under an unapproved pension arrangement from his estate for the purposes of Parts VIII to XI of the 1986 Act (which cover individual voluntary arrangements, bankruptcy and individual insolvency), a bankrupt may—

• (a) make an application to the court for an exclusion order in accordance with the provisions of regulation 5 below;

• (b) enter into a qualifying agreement with the trustee in bankruptcy in accordance with the provisions of regulation 6 below.

Exclusion orders

5

• (1) Subject to paragraph (2) below, an application for an exclusion order shall be made to the court within a period of—

• (a) thirteen weeks beginning with—

• (i) the date on which the bankrupt’s estate vests in the trustee in bankruptcy in accordance with the provisions of section 306 of the 1986 Act (vesting of bankrupt’s estate in trustee), or

• (ii) in the case of a scheme referred to in regulation 3(1)(a) above, the date, if later than that referred to in head (i) above, on which any rights of the bankrupt vest in the trustee in bankruptcy on the de-registration of the scheme by Her Majesty’s Revenue and Customs by virtue of section 157 of the Finance Act 2004; or

• (b) thirty days beginning with the date on which a qualifying agreement is revoked in accordance with the provisions of regulation 6 below.

• (2) The court may, either before or after it has expired and where good cause is shown, extend the period referred to in paragraph (1)(a) or, as the case may be, (1)(b) above.

• (3) In deciding whether to make an exclusion order and, if so, whether to make it in respect of part or all (but not exceeding the total amount) of the excludable rights, the court shall have reference to—

• (a) the future likely needs of the bankrupt and his family;

• (b) whether any benefits by way of pension or otherwise (other than a pension under Part II of the Social Security Contributions and Benefits Act 1992 or Part II of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (contributory benefits) or an income-related benefit or universal credit under Part 1 of the Welfare Reform Act 2012) are likely to be received by virtue of rights of the bankrupt which have already accrued under any other pension arrangements at the date on which the application for an exclusion order is made and the extent to which they appear likely to be adequate for meeting any such needs.

Qualifying agreements

6

• (1) A qualifying agreement shall be made within a period of nine weeks beginning with the later of the following—

• (a) the date on which the bankrupt’s estate vests in the trustee in bankruptcy in accordance with the provisions of section 306 of the 1986 Act (vesting of bankrupt’s estate in trustee); or

• (b) in the case of a scheme referred to in regulation 3(1)(a) above, the date, if later than that referred to in sub-paragraph (a) above, on which any rights of the bankrupt vest in the trustee in bankruptcy on the de-registration of the scheme by Her Majesty’s Revenue and Customs by virtue of section 157 of the Finance Act 2004.

• (2) A qualifying agreement made between the bankrupt and the trustee in bankruptcy shall be by deed and incorporate all the terms which they have expressly agreed.

• (3) Where—

• (a) the bankrupt has failed to make full disclosure of all material facts in respect of any pension arrangement which is the subject of a qualifying agreement; and

• (b) has failed to do so for the purpose of enabling his rights under such an arrangement to be excluded from his estate for the purposes of Parts VIII to XI of the 1986 Act where they would not have otherwise been excluded,

the trustee in bankruptcy may revoke that agreement by giving the bankrupt notice of revocation.

• (4) A notice of revocation shall—

• (a) be dated;

• (b) be in writing;

• (c) specify the reasons for revocation of the qualifying agreement;

• (d) specify the date on which the agreement shall be revoked, such date not being one falling within a period of thirty days beginning with the date of the notice; and

• (e) inform the bankrupt that he has the right to apply for an exclusion order within a period of thirty days beginning with the date referred to in sub-paragraph (d) above.

• (5) Where a qualifying agreement has been made or revoked in accordance with the provisions of this regulation, the trustee in bankruptcy shall, within a period of thirty days beginning with the date on which that agreement was made or, in the case of a notice of revocation, the date required under paragraph (4)(a) above, notify the responsible person in writing of that fact.

Calculation and verification of rights under pension arrangements

7

• (1) For the purposes of section 342B(4)(b) of the 1986 Act , the value of the individual’s (“the bankrupt’s”) rights under an approved pension arrangement, or of his excluded rights under an unapproved pension arrangement, shall be the cash equivalent of those rights as calculated and verified in accordance with paragraph (2) below.

• (2) In calculating and verifying the cash equivalent of the rights referred to in paragraph (1) above, regulation 3 of the Pensions on Divorce etc. (Provision of Information) Regulations 2000 (information about pensions and divorce and dissolution of a civil partnership : valuation of pension benefits) shall have effect for the purposes of this regulation in like manner to that in which it has effect for the valuation of benefits in connection with the supply of information in connection with domestic and overseas divorce etc. and dissolution of a civil partnership in England, Wales and Northern Ireland for the purposes of those Regulations; and for these purposes “the date on which the request for the valuation was received” in that regulation shall be read as “the date on which the trustee in bankruptcy’s request for the valuation was received”.

Time for compliance with restoration order

8

The responsible person shall comply with the restoration order before the end of a period of seventeen weeks beginning with the date of service of that order.

Calculation and verification of rights under destination arrangements

9

• (1) Where section 342E of the 1986 Act applies, the value of a transferee’s rights under a destination arrangement, derived directly or indirectly from a pension-sharing transaction, shall be—

• (a) the cash equivalent of those rights at the date on which the trustee in bankruptcy’s request for that valuation is received by the responsible person; and

• (b) calculated and verified in accordance with paragraph (2) below.

• (2) In calculating and verifying the cash equivalent of the transferee’s rights referred to in paragraph (1) above, regulation 24 of the Pension Sharing (Pension Credit Benefit) Regulations 2000 shall have effect for the purposes of this regulation in like manner to that in which it has effect for the calculation and verification of pension credit for the purposes of those Regulations.

Time for compliance with request for information

10

• (1) Subject to paragraph (2) below, where a request for information has been made to the responsible person by—

• (a) the trustee in bankruptcy or the bankrupt in connection with the making of an application for an exclusion order;

• (b) the bankrupt for, or in connection with, the making of a qualifying agreement referred to in regulation 6 above; or

• (c) the trustee in bankruptcy—

• (i) pursuant to section 342C(1) of the 1986 Act (which enables the trustee in bankruptcy to request the responsible person to provide information which he may reasonably need for the making of an application for a restoration order) and relating to the cash equivalent of a bankrupt’s rights or excluded rights,

• (ii) pursuant to section 342F(1) to (3) of the 1986 Act (which enables the transferor’s trustee in bankruptcy to request the responsible person to provide information which he may reasonably need for the making of an application under sections 339 and 340 of the 1986 Act) and relating to the cash equivalent of a transferee’s rights under a destination arrangement,

he shall comply with that request within a period of nine weeks beginning with the day on which it is received.

• (2) In the case of a request for information falling within sub-paragraph (a) of paragraph (1) above, the court may, either before or after it has expired and where good cause is shown, extend the period referred to in that paragraph.

PART III — SCOTLAND

Prescribed pension arrangements

11

For the purposes of section 11(2)(h) of the 1999 Act, regulation 2 above shall apply to Scotland in like manner to that in which it applies to England and Wales.

Unapproved pension arrangements

12

• (1) For the purposes of section 12 of the 1999 Act, a pension arrangement falling within—

• (a) section 157 of the Finance Act 2004;

• (b) paragraphs 52 to 57 of Schedule 36 to that Act; or

• (c) section 393A of the 2003 Act,

shall be an “unapproved pension arrangement” if it satisfies the conditions specified in paragraph (2) below.

• (2) The conditions referred to in paragraph (1) above are that the pension arrangement—

• (a) is established under—

• (i) an irrevocable trust, or

• (ii) a contract, agreement or arrangement made with the debtor;

• (b) has as its primary purpose the provision of relevant benefits; and

• (c) is the debtor’s sole pension arrangement or his main means of pension provision (other than a pension under Part II of the Social Security Contributions and Benefits Act 1992 (contributory benefits) or Part II of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (contributory benefits)).

• (3) For the purposes of section 12(2)(c) of the 1999 Act, the prescribed person shall be the responsible person.