The Financial Assistance Scheme (Appeals) Regulations 2005

Made: 28th November 2005

Coming into force in accordance with regulation 1(1)

The Secretary of State for Work and Pensions makes the following Regulations in exercise of the powers conferred by sections 213(4)(d), 286(1) and (3)(g)(i) and (i), 315(2), (4) and (5) and 318(1) of the Pensions Act 2004 .

In accordance with section 8(1) of the Tribunals and Inquiries Act 1992 , the Secretary of State has consulted the Council on Tribunals before making any procedural rules made under, or by virtue of, section 213(4)(d) of the Pensions Act 2004 in respect of the functions of the Ombudsman for the Board of the Pension Protection Fund.

In accordance with section 316(2)(h) and (n) of the Pensions Act 2004, a draft of this instrument was laid before Parliament and approved by a resolution of each House of Parliament.

This instrument contains regulations which are made before the end of the period of six months beginning with the coming into force of the provisions of that Act by virtue of which the regulations are made .

Citation, commencement and extent

1

• (1) These Regulations may be cited as the Financial Assistance Scheme (Appeals) Regulations 2005 and shall come into force on the day after the day on which they are made.

• (2) These Regulations extend to Northern Ireland.

Interpretation

2

In these Regulations—

• “the Act” means the Pensions Act 2004;

• “the FAS Regulations” means the Financial Assistance Scheme Regulations 2005 ;

• “the FAS Internal Review Regulations” means the Financial Assistance Scheme (Internal Review) Regulations 2005 ;

• “the FAS Information and Payments Regulations” means the Financial Assistance Scheme (Provision of Information and Administration of Payments) Regulations 2005 ;

• “the Ombudsman” means the PPF Ombudsman or a Deputy PPF Ombudsman;

• “appeal” means an appeal—against a review decision or subsequent review decision; andmade to the Ombudsman under these Regulations;

• “appellant” means any interested person who—is entitled under regulation 4 to make an appeal; andmakes an appeal;

• “beneficiary” means a qualifying member or, after his death, his survivor or surviving dependant;

• “Deputy PPF Ombudsman” means a person appointed under section 210(1) of the Act (deputy PPF Ombudsmen) to act as a deputy to the PPF Ombudsman;

• “early retiree assessment decision” means a review decision made by the scheme manager under the FAS Internal Review Regulations which relates to a determination as to whether or not a person is entitled to a payment in accordance with regulation 17H of the FAS Regulations (payments to qualifying members receiving a pension from the qualifying pension scheme before entitlement to an annual payment or ill health payment)

• “ill health eligibility decision” means a review decision made by the scheme manager under the FAS Internal Review Regulations which relates to a determination as to whether or not the scheme manager is satisfied that a qualifying member is unable to work due to ill health and is likely to continue to be so unable to work until normal retirement age for the purposes of regulations 17A(1) (ill health payments) and 17B(1) (interim ill health payments) of the FAS Regulations;

• “ill health payment assessment decision” means a review decision made by the scheme manager under the FAS Internal Review Regulations which relates to a determination as to the amount of an ill health payment payable to a beneficiary in accordance with regulation 17A of, and Schedule 2A, 5 or 6 (determination of ill health and interim ill health payments) to, the FAS Regulations;

• “indexation assessment decision” means a review decision made by the scheme manager under the FAS Internal Review Regulations which relates to a determination as to the amount of any annual increase to an annual payment or ill health payment determined in accordance with Schedules 2 to 6 to the FAS Regulations or as to the amount of any annual increases to a payment determined in accordance with Schedule 7 to the FAS Regulations;

• “interested person”, in relation to an appeal, means any person who is entitled under regulation 6(1) of the FAS Internal Review Regulations (applications for a review of a reviewable determination) to make an application for the review of the determination to which the review decision or subsequent review decision relates;

• “lump sum assessment decision” means a review decision made by the scheme manager under the FAS Internal Review Regulations which relates to a determination as whether or not regulation 17D of the FAS Regulations (lump sum payments) applies in respect of a qualifying member and the amount of any lump sum determined in accordance with regulation 17D of the FAS Regulations;

• “member assessment decision” means a review decision made by the scheme manager under the FAS Internal Review Regulations which relates to a determination as to the amount of an annual payment payable to a qualifying member or a survivor or surviving dependant of that qualifying member of a qualifying pension scheme in accordance with regulation 17 of, and Schedule 2, 3 or 4 to, the FAS Regulations (annual payments; determination of annual and initial payments) ;

• “member eligibility decision” means a review decision made by the scheme manager under the FAS Internal Review Regulations which relates to a determination as to whether or not a member of a qualifying pension scheme is a qualifying member;

• “party to an appeal” means any of the following—the appellant;the scheme manager; andwhere an appeal relates to a scheme notification decision or a scheme eligibility decision and the occupational pension scheme in question has not completed winding up, the trustees or managers of that scheme, if the trustees or managers are not the appellant;

• “potential beneficiary” means any person—in respect of whom the information determined in accordance with the fourth item of the table in paragraph 1(2) of Schedule 1 to the FAS Information and Payments Regulations (information to be provided by appropriate persons) is to be provided to the scheme manager in accordance with regulation 3(3)(a) (information to be provided to the scheme manager) of those Regulations ; butwho has not yet been determined to be a beneficiary;

• “qualifying member” shall be construed in accordance with regulation 15 of the FAS Regulations (qualifying members);

• “qualifying pension scheme” shall be construed in accordance with regulation 9 of the FAS Regulations (qualifying pension schemes);

• “representative”, in relation to a party to an appeal, means a person appointed under regulation 27 to act as a representative of that party for the purposes of these Regulations;

• “review decision” shall be construed in accordance with regulations 4 (duty of scheme manager to give a review decision) , 7(1) and (2) (combined or further applications) and 10 (review decisions or subsequent review decisions other than on application) of the FAS Internal Review Regulations;

• “scheme beneficiaries decision” means a review decision made by the scheme manager under the FAS Internal Review Regulations which relates to a determination as to eligibility for and the amount of any payment in accordance with regulation 17G of the FAS Regulations (payments to beneficiaries other than qualifying members, survivors and surviving dependants);

• “scheme eligibility decision” means a review decision made by the scheme manager under the FAS Internal Review Regulations which relates to a determination as to whether or not an occupational pension scheme is a qualifying pension scheme in accordance with Part 3 of the FAS Regulations (qualifying pension schemes);

• “scheme manager” shall be construed in accordance with regulation 5 of the FAS Regulations (scheme manager);

• “scheme notification decision” means a review decision made by the scheme manager under the FAS Internal Review Regulations which relates to a determination as to whether or not the details prescribed in regulation 14 of the FAS Regulations (notification of details) have been supplied to the scheme manager in the form and manner, and before the end of the notification period, prescribed in that regulation;

• “section 134 or Article 118 directions decision” means a review decision made by the scheme manager under the FAS Internal Review Regulations which relates to the giving of a direction under section 134 of the Act or Article 118 of the Pensions (Northern Ireland) Order 2005;

• “severe ill health eligibility decision” means a review decision made by the scheme manager under the FAS Internal Review Regulations which relates to a determination as to whether or not the scheme manager is satisfied that a qualifying member is entitled to an annual payment under regulation 17(3C) or 17C of the FAS Regulations or—is unable to work due to ill health;is likely to continue to be so unable to work until normal retirement age; andsuffers from a progressive disease and as a consequence can reasonably be expected to die within five years but, as appropriate, not within six months,for the purposes of an initial payment under regulation 18(1)(ab) of those Regulations;.

• “subsequent review decision” has the meaning given in regulation 7(2) of the FAS Internal Review Regulations;

• “surviving dependant” has the meaning given in regulation 2(1) of the FAS Regulations;

• “survivor” has the meaning given in regulation 2(1) of the FAS Regulations (interpretation).

• “survivor eligibility decision” means a review decision made by the scheme manager under the FAS Internal Review Regulations which relates to a determination as to whether or not a person is a survivor or surviving dependant of a qualifying member;

• “terminal illness eligibility decision” means a review decision made by the scheme manager under the FAS Internal Review Regulations which relates to a determination as to whether or not the scheme manager is satisfied that a qualifying member is terminally ill for the purposes of regulations 17(3) (annual payments: terminally ill qualifying member) and 18(1)(a)(ii)(bb) (initial payments: terminally ill qualifying member) of the FAS Regulations.

• “valuation approval decision” means a review decision made by the scheme manager under the FAS Internal Review Regulations which relates to the approval of a valuation in respect of the qualifying scheme under regulation 25 of the FAS Regulations (approval of valuation);

Appointment of the Ombudsman to hear appeals against review decisions

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The following persons are appointed to investigate and determine appeals—

• (a) the PPF Ombudsman;

• (b) any Deputy PPF Ombudsman.

Right to appeal against review decisions

4

An appeal may be made to the Ombudsman by any interested person to whom a notice of the review decision or subsequent review decision is issued under regulation 16 of the FAS Internal Review Regulations (notice of a review decision or a subsequent review decision) .

Time for appealing

5

• (1) An appeal must be made before the end of the period of two months beginning with the date on which the decision against which the appeal is made was given.

• (2) An appeal is made when a notice of appeal is received by the Ombudsman.

Notice of appeal

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• (1) A person wishing to make an appeal must send a notice of appeal to the Ombudsman.

• (2) The notice of appeal must be in writing and must include—

• (a) the name and address of the appellant;

• (b) where the appeal relates to a member assessment decision , an ill health payment assessment decision, an ill health eligibility decision , an early retiree assessment decision, a lump sum assessment decision, an indexation assessment decision, a scheme beneficiaries decision , a member eligibility decision , a severe ill health eligibility decision , a survivor eligibility decision or a terminal illness decision, the name and address of the beneficiary or potential beneficiary if he is not the appellant;

• (c) where the appeal relates to a scheme notification decision , a section 134 or Article 118 directions decision, a valuation approval decision or a scheme eligibility decision, the name and address of the trustees or managers if they are not the appellant;

• (d) if a representative is acting on behalf of the appellant in relation to the appeal, the name and address of that representative, and a statement as to whether that address is the address to be used for the purposes of the appeal;

• (e) the date of the review decision or subsequent review decision against which the appeal is made;

• (f) a copy of that decision; and

• (g) the grounds on which the appeal is made.

• (3) The notice of appeal must be signed and dated by—

• (a) the appellant;

• (b) if a representative is acting on behalf of the appellant in relation to the appeal, that representative, and

• (c) where the appeal relates to a scheme notification decision or a scheme eligibility decision, the trustees or managers of the scheme if they are not the appellant.

• (4) A notice of appeal that is sent by means of an electronic communications network is treated as having been signed if the identity of the persons who are required by paragraph (3) to sign the notice of appeal can be established from the notice.

• (5) The Ombudsman may give directions as to the manner in which the identity of those persons can be established from the notice of appeal.

• (6) In paragraph (4), “electronic communications network” has the same meaning as in section 32 of the Communications Act 2003 (meaning of electronic communications networks and services).

Procedure on receipt of notice of appeal

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• (1) As soon as practicable after receiving a notice of appeal that is made in accordance with regulations 5 and 6, the Ombudsman must—

• (a) send an acknowledgement of its receipt to each party to the appeal, or, if applicable, to that party's representative; and

• (b) where an appeal relates to a scheme notification decision or a scheme eligibility decision, take reasonable steps to publicise to all other interested persons in relation to the appeal the fact that the appeal has been made.

• (2) The acknowledgement must state the date on which the notice of appeal was received.

• (3) The acknowledgement sent to the appellant, or, if applicable, to the appellant's representative, must inform the appellant or representative—

• (a) that any information or documents provided in support of the notice of appeal will be—

• (i) copied to the other parties to the appeal, and

• (ii) where the appeal relates to a scheme notification decision or a scheme eligibility decision, made available for inspection by all other interested persons; and

• (b) about the binding nature of any determination or direction given or made by the Ombudsman, as described in regulation 24.

• (4) When the Ombudsman sends an acknowledgement to the scheme manager, he must also send a copy of the notice of appeal.

• (5) An acknowledgement sent by the Ombudsman under this regulation must be in writing, but, subject to that, may be made in such manner as the Ombudsman considers appropriate.

• (6) Where the appeal relates to a scheme notification decision or a scheme eligibility decision, the publicity given under paragraph (1)(b) must—

• (a) inform interested persons who are not parties to the appeal of their right to—

• (i) make written representations under regulation 11(1), and

• (ii) request an oral hearing under regulation 13(1);

• (b) specify the date by which—

• (i) those written representations must be received by the Ombudsman, and

• (ii) a request for an oral hearing must be made,

which must be not less than 28 days beginning with the day on which the Ombudsman publicises the existence of the notice of appeal; and

• (c) include information about the binding nature of the Ombudsman's decision, as described in regulation 24.

Procedure where appeal not duly made

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• (1) As soon as practicable after receiving a notice of appeal that is not made in accordance with regulations 5 and 6, the Ombudsman must inform the appellant, or, if applicable, the appellant's representative, that it was not duly made and that, unless paragraph (2) applies, he will not be investigating the matter in question.

• (2) The Ombudsman may investigate an appeal which is not made in accordance with regulation 6 where—

• (a) the appeal was made within the time limit specified in regulation 5;

• (b) the Ombudsman is satisfied that the appellant, or, if applicable, the appellant's representative, can amend the notice of appeal so that it is made in accordance with regulation 6 within such period as the Ombudsman requests; and

• (c) the notice of appeal is so amended.

Duty to investigate and determine appeal

9

Where an appeal is made in accordance with regulations 5 and 6, the Ombudsman must—

• (a) investigate and determine the matter; and

• (b) determine what action, if any, the scheme manager should take.

Conduct of investigation: general

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• (1) Except as otherwise provided in these Regulations, the procedure for conducting an investigation into the matters arising on an appeal is such as the Ombudsman considers appropriate in the circumstances of the case.

• (2) In particular, the Ombudsman may—

• (a) make such inquiries as he sees fit;

• (b) consider any evidence before him, including evidence which was not before the scheme manager when the determination in question was made or reviewed;

• (c) conduct an oral hearing in relation to the appeal, whether or not a request for an oral hearing is made under regulation 13;

• (d) give such directions as to the conduct of any oral hearing as he sees fit;

• (e) investigate the matters arising on the appeal on the basis of written evidence before him, without holding an oral hearing;

• (f) refer any question which arises out of the appeal to a person who, in the Ombudsman's opinion, is able to provide an expert opinion in relation to that question; and

• (g) deal together with any matters that—