155.—(1) An independent provider must not in any scheme year exceed the 75% threshold for the aggregate amount of pensionable earnings paid to members of this scheme in respect of the performance of services under all qualifying contracts in relation to which the independent provider is an employing authority.
(2) If an independent provider fails to comply with paragraph (1), the independent provider must pay to the scheme manager a surcharge (the employer contribution surcharge) of 12% of—
(a)the amount by which the 75% threshold is exceeded; or
(b)if paragraph (3) applies such part of the excess as the scheme manager considers reasonable having regard to the declared NHS income, profits, losses and expenses for the scheme year in question.
(3) This paragraph applies if the scheme manager is satisfied that there is a reasonable explanation for the threshold having been exceeded.
(4) Where paragraph (3) applies, the scheme manager may, at any time—
(a)reduce the amount of the excess in respect of which the employer contribution surcharge is to be paid; or
(b)determine that no surcharge is to be paid.
(5) An employer contribution surcharge must be paid to the scheme manager before the end of the period of one month (or in exceptional circumstances such other period as the scheme manager decides) starting with the date on which the scheme manager gives notice to an independent provider that the surcharge is payable.
(6) If an independent provider fails to pay an employer contribution surcharge on or before the time required by paragraph (5)—
(a)there is a chargeable event for the purposes of regulation 36;
(b)paragraphs (2) to (8) of that regulation apply as if the surcharge were contributions payable by an employing authority.
(7) The failure of an independent provider to comply with paragraph (1) does not affect—
(a)the amount of pensionable earnings a person who is member of this scheme by virtue of regulation 18(1)(c) is entitled to count for the purposes of these Regulations; or
(b)entitlement to or the amount of benefits payable under this scheme.