The Pension Protection Fund (Review and Reconsideration of Reviewable Matters) Regulations 2005

Made: 10th March 2005

Laid before Parliament: 16th March 2005

Coming into force: 6th April 2005

The Secretary of State for Work and Pensions, in exercise of the powers conferred upon him by sections 207, 315(2), (4) and (5) and 318(1) of the Pensions Act 2004 , and of all other powers enabling him in that behalf, after consultation with the Council on Tribunals in accordance with section 8 of the Tribunals and Inquiries Act 1992 , by this instrument, which contains regulations made before the end of the period of six months beginning with the coming into force of the provisions of the Act by virtue of which they are made , hereby makes the following Regulations:

Citation, commencement and interpretation

1

• (1) These Regulations may be cited as the Pension Protection Fund (Review and Reconsideration of Reviewable Matters) Regulations 2005 and shall come into force on 6th April 2005.

• (2) In these Regulations—

• “the Act” means the Pensions Act 2004;

• “the assessment date” means the date on which the assessment period in relation to the scheme or section, or (where there has been more than one such assessment period) the last one, began;

• “employer”, in relation to—an occupational pension scheme which is not a multi-employer scheme; ora single-employer section of a segregated scheme,which has no active members, includes the person who was the employer of persons in the description of employment to which the scheme or section relates immediately before the time at which the scheme or section ceased to have any active members in relation to it;

• “employer”, in relation to a non-segregated scheme or a multi-employer section of a segregated scheme—in an assessment period, includes any person who before the assessment date has ceased to be the employer of persons in the description of employment to which the scheme or section relates unless condition A, B, C or D is satisfied where—condition A is that a debt under section 75 of the Pensions Act 1995 (deficiencies in the assets) became due from that employer and the full amount of the debt has been paid before the assessment date;condition B is that—such a debt became due;a legally enforceable agreement has been entered into the effect of which is to reduce the amount which may be recovered in respect of the debt; andthe reduced amount has been paid in full before the assessment date;condition C is that such a debt became due but before the assessment date it is excluded from the value of the assets of the scheme or section because it is unlikely to be recovered without disproportionate costs or within a reasonable time;condition D is that at the time at which any such person ceased to be the employer of persons in the description of employment to which the scheme or section relates the value of the assets of the scheme or section was such that no such debt was treated as becoming due;in any other case, includes any person who has ceased to be the employer of persons in the description of employment to which the scheme or section relates unless condition A, B, C or D is satisfied where—condition A is that a debt under section 75 of the Pensions Act 1995 became due from that employer and the full amount of the debt has been paid;condition B is that—such a debt became due;a legally enforceable agreement has been entered into the effect of which is to reduce the amount which may be recovered in respect of the debt; andthe reduced amount has been paid in full;condition C is that such a debt became due but it is excluded from the value of the assets of the scheme or section because it is unlikely to be recovered without disproportionate costs or within a reasonable time;condition D is that at the time at which any such person ceased to be the employer of persons in the description of employment to which the scheme or section relates the value of the assets of the scheme or section was such that no such debt was treated as becoming due;

• interested person, unless the context otherwise requires, means, in relation to a reviewable matter specified in any paragraph in column 1 of the Schedule, the person prescribed in relation to that matter in the corresponding paragraph in column 2 or, as the case may be, a representative of that person appointed under regulation 28.

• “non-segregated scheme” means a multi-employer scheme which is not a segregated scheme;

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

Duty to give a review decision

2

The Board must give a review decision on any reviewable matter on the written application of an interested person.

Time for making an application for a review decision

3

• (1) Subject to paragraph (2), any application for a review decision on any reviewable matter must be made—

• (a) in the case of an application concerning the issue of a determination under section 143(2)(a) or the approval of a valuation under section 144(2)(a) of the Act (approval of valuation), by sending it to the Board before the end of a period of 28 days beginning with the date on which the trustees or managers of the scheme provide a summary of the determination or a summary of the valuation to members of the scheme in accordance with regulations made under section 203(1)(b)(ii) (provision of information to members of schemes etc);

• (b) in the case of an application concerning the determination of a person's entitlement to compensation under section 162 of the Act (the pension compensation provisions), at any time after the determination is made;

• (c) in all other cases, by sending it to the Board before the end of a period of 28 days beginning with the date on which the Board issues the determination, direction or other decision in respect of the reviewable matter.

• (2) Subject to paragraph (3) where the circumstances of a case are such that, in the opinion of the Board, it is reasonable for an application to be made after the end of the period specified in paragraph (1)(a) or (c), the Board must give a review decision if the application is made within such further period as the Board considers to be reasonable.

• (3) Paragraph (2) shall not apply to—

• (a) the issue of a notice under section 122 (insolvency practitioner's duty to issue notices confirming status of scheme) by virtue of section 124 (Board's duty where there is a failure to comply with section 122);

• (b) the issue of a determination notice under section 123(4) (approval of notices issued under section 122);

• (c) the issue of—

• (i) a scheme failure notice under section 130(2) (Board's duty where application or notification received under section 129); or

• (ii) a withdrawal notice under section 130(3);

• (d) the issue of a notice under section 136(2) (power to validate contraventions under section 135);

• (da) the issue of–

• (i) a determination under section 143(2)(a) (whether condition in section 127(2)(a) or 128(2)(a) satisfied); or

• (ii) a notice under section 143(2A) (whether Board will make a determination or obtain an actuarial valuation);

• (e) the approval of the valuation under section 144(2)(a) (approval of valuation);

• (f) the issue of a withdrawal notice under section 146(2)(a) (schemes which become eligible schemes);

• (g) the issue of a withdrawal notice under section 147(2)(a) (new schemes created to replace existing schemes);

• (h) the issue of a withdrawal notice under section 148(3) or (4) (withdrawal following issue of section 122(4) notice);

• (i) the issue of a determination notice under section 152(3) (duty to assume responsibility following reconsideration); ...

• (j) the issue of a determination notice under section 153(6) (closed schemes);...

• (ja) the issue of–

• (i) a determination under section 158(3)(a) (whether condition in section 158(1) satisfied); or

• (ii) a notice under section 158(3A) (whether Board will make a determination or obtain an actuarial valuation); or

• (k) the issue of a validation notice under paragraph (5) of regulation 2 of the Pension Protection Fund (Entry Rules) Regulations 2005 (schemes which are not eligible schemes)

Matters to be addressed or included in an application for a review decision

4

• (1) An application for a review decision on any reviewable matter must include—

• (a) the name and address of the interested person making the application;

• (b) the date on which any—

• (i) determination;

• (ii) direction; or

• (iii) other decision,

was issued by the Board;

• (c) the grounds on which the application is made;

• (d) in the case of a representative, the name and address of the person represented by him.

• (2) An application must be signed and dated by the interested person.

Notice of an application for a review decision

5

On receipt of an application made under regulation 3 the Board must, if it is of the opinion that an interested person other than the person making the application may be materially affected by the review decision, notify that person—

• (a) that an application has been received; and

• (b) of the grounds on which the application has been made.

Review decisions other than on an application

6

• (1) The Board may give a review decision in respect of a reviewable matter otherwise than on an application.

• (2) Paragraph (1) does not apply to any reviewable matter specified in sub-paragraphs (a) to (j) of regulation 3(3) in respect of which there has been any determination, direction, or other decision which has become binding by virtue of or under the Act.

Notice of reviews other than on application

7

• (1) Where the Board decides to give a review decision in respect of a reviewable matter under regulation 6(1) it must notify any interested person.

• (2) For the purposes of paragraph (1) an interested person means a person who, in the opinion of the Board, may be materially affected by the review decision or, as the case may be, the representative of that person appointed under regulation 28.

Provision of written representations to the Board

8

• (1) Subject to paragraph (2)—

• (a) an interested person notified by the Board under regulation 5 of an application for a review decision on any reviewable matter; or

• (b) an interested person notified under regulation 7(1),

may make written representations to the Board in respect of that matter.

• (2) Any representations made under paragraph (1) must be received by the Board by such time as the Board may reasonably require.

Matters to be considered in giving a review decision

9

• (1) In giving a review decision under regulation 2 the Board must take into account—

• (a) any information or documentation provided by the interested person making the application;

• (b) any representations made by an interested person in accordance with regulation 8(1)(a);

• (c) any other matters that appear to it to be relevant, including any relevant change of circumstances since the determination, direction or other decision was made or the failure occurred.

• (2) In giving a review decision under regulation 6(1) the Board must take into account—

• (a) any representations made by an interested person in accordance with regulation 8(1)(b);

• (b) any other matters that appear to it to be relevant, including any relevant change of circumstances since the determination, direction or other decision was made or the failure occurred.

Time for giving review decision

10

• (1) Subject to paragraph (2) the Board must give a review decision under regulation 2 before the end of a period of 28 days beginning with—

• (a) the date on which it receives the application for a review decision; or

• (b) the last date by which any documents or information that the Board has required a person to provide in accordance with a notice given under section 191 of the Act (notices requiring provision of information) are to have been provided,

whichever is the later.

• (2) If the Board is not able to give a review decision before the end of the period specified in paragraph (1) it must send an interim reply to—

• (a) the interested person making the application; and

• (b) any interested person notified of the application under regulation 5,

setting out the reasons for the delay and the expected date for issuing the review decision.

• (3) Subject to paragraph (4) the Board must give a review decision under regulation 6(1) before the end of a period of 28 days beginning with—

• (a) the date on which the Board notified any interested person that it had decided to give a review decision in respect of a reviewable matter otherwise than on an application; or

• (b) the last date by which any documents or information that the Board has required a person to provide in accordance with a notice given under section 191 of the Act (notices requiring provision of information) are to have been provided,

whichever is the later.

• (4) If the Board is not able to give a review decision before the end of the period specified in paragraph (3) it must send an interim reply to any person notified of the decision under regulation 7(1) setting out the reasons for the delay and the expected date for issuing the review decision.

Powers on giving a review decision

11

In giving a review decision under regulation 2 or 6(1) the Board may—

• (a) vary or revoke the determination, direction or other decision already made by the Board in respect of the reviewable matter;

• (b) substitute a different determination, direction or decision;

• (c) provide for such variations, revocations or substitutions, or any determinations, directions or other decisions made as a result of the review decision, to be treated as if they were made at such time (which may be a time prior to the making of the review decision) as the Board considers appropriate;

• (d) provide for any notice varied, substituted, issued or given by the Board as a result of the review decision to be treated as if it were issued or given at such time (which may be a time prior to the making of the review decision) as the Board considers appropriate;

• (e) deal with the matters arising on the review decision as if they had arisen on the original determination, direction or decision;

• (f) pay such compensation as the Board considers appropriate to such persons as it may determine;

• (g) make savings and transitional provision.

Matters to be included in a review decision

12

A review decision given under regulation 2 or 6(1) must be given in writing and must include—

• (a) reasons for the decision;

• (b) an explanation as to whether and, if so, to what extent that decision—

• (i) varies or revokes a determination, direction, or other decision already made by the Board in respect of the reviewable matter;

• (ii) substitutes a different determination, direction or decision; or

• (iii) varies or substitutes a notice issued or given by the Board;

• (c) references to any relevant legislation;

• (d) a statement that if a person notified of the review decision under regulation 13(1) or (3) is dissatisfied with it he may refer the matter to the Reconsideration Committee for a reconsideration decision;

• (e) the address at which the Reconsideration Committee may be contacted.

Notice of a review decision

13

• (1) The Board must send a copy of a review decision given under regulation 2 to the interested persons specified in paragraph (2).

• (2) The interested persons specified for the purposes of paragraph (1) are—

• (a) the interested person who made the application for a review under regulation 2;

• (b) any other interested person notified of the application by the Board in accordance with regulation 5.

• (3) The Board must send a copy of a review decision given under regulation 6(1) to a person notified in accordance with regulation 7(1) of the Board's decision to give a review decision in respect of a reviewable matter otherwise than on application.

• (4) The Board must also send a copy of the review decision given under regulations 2 or 6(1) to the Regulator if the Regulator was entitled to notification of the determination, direction or other decision in respect of which the review decision has been given by virtue of or under the Act.

Duty to give a reconsideration decision

14

• (1) Where the Board has given a review decision the Reconsideration Committee must reconsider the reviewable matter and give a reconsideration decision on the written application of an interested person.

• (2) For the purposes of paragraph (1) an interested person means a person sent a copy of the review decision in accordance with regulation 13(1) or (3).

Time for making an application to reconsider

15

• (1) Subject to paragraph (2) an application to reconsider a reviewable matter and give a reconsideration decision must be made by sending it to the Reconsideration Committee within 28 days of the date of issue of the review decision.

• (2) Subject to paragraph (3), where the circumstances of the case are such that, in the opinion of the Reconsideration Committee, it is reasonable for an application to be made after the end of the period specified in paragraph (1), the Reconsideration Committee must give a reconsideration decision if the application is made within such further period as the Reconsideration Committee considers to be reasonable.

• (3) Paragraph (2) shall not apply to—

• (a) the issue of a notice under section 122 (insolvency practitioner's duty to issue notices confirming status of scheme) by virtue of section 124 (Board's duty where there is a failure to comply with section 122);

• (b) the issue of a determination notice under section 123(4) (approval of notices issued under section 122);

• (c) the issue of—