38Contribution notices where avoidance of employer debtE+W+S
(1)This section applies in relation to an occupational pension scheme other than—
(a)a money purchase scheme, or
(b)a prescribed scheme or a scheme of a prescribed description.
(2)The Regulator may issue a notice to a person stating that the person is under a liability to pay the sum specified in the notice (a “contribution notice”)—
(a)to the trustees or managers of the scheme, or
(b)where the Board of the Pension Protection Fund has assumed responsibility for the scheme in accordance with Chapter 3 of Part 2 (pension protection), to the Board.
(3)The Regulator may issue a contribution notice to a person only if—
(a)the Regulator is of the opinion that the person was a party to an act or a deliberate failure to act which falls within subsection (5),
(b)the person was at any time in the relevant period—
(i)the employer in relation to the scheme, or
(ii)a person connected with, or an associate of, the employer,
(c)the Regulator is of the opinion that the person, in being a party to the act or failure, was not acting in accordance with his functions as an insolvency practitioner in relation to another person, and
(d)the Regulator is of the opinion that it is reasonable to impose liability on the person to pay the sum specified in the notice.
(4)But the Regulator may not issue a contribution notice, in such circumstances as may be prescribed, to a person of a prescribed description.
(5)An act or a failure to act falls within this subsection if—
(a)the Regulator is of the opinion that the main purpose or one of the main purposes of the act or failure was—
(i)to prevent the recovery of the whole or any part of a debt which was, or might become, due from the employer in relation to the scheme under section 75 of the Pensions Act 1995 (c. 26) (deficiencies in the scheme assets), or
(ii)otherwise than in good faith, to prevent such a debt becoming due, to compromise or otherwise settle such a debt, or to reduce the amount of such a debt which would otherwise become due,
(b)it is an act which occurred, or a failure to act which first occurred—
(i)on or after 27th April 2004, and
(ii)before any assumption of responsibility for the scheme by the Board in accordance with Chapter 3 of Part 2, and
(c)it is either—
(i)an act which occurred during the period of six years ending with the determination by the Regulator to exercise the power to issue the contribution notice in question, or
(ii)a failure which first occurred during, or continued for the whole or part of, that period.
(6)For the purposes of subsection (3)—
(a)the parties to an act or a deliberate failure include those persons who knowingly assist in the act or failure, and
(b)“the relevant period” means the period which—
(i)begins with the time when the act falling within subsection (5) occurs or the failure to act falling within that subsection first occurs, and
(ii)ends with the determination by the Regulator to exercise the power to issue the contribution notice in question.
(7)The Regulator, when deciding for the purposes of subsection (3)(d) whether it is reasonable to impose liability on a particular person to pay the sum specified in the notice, must have regard to such matters as the Regulator considers relevant including, where relevant, the following matters—
(a)the degree of involvement of the person in the act or failure to act which falls within subsection (5),
(b)the relationship which the person has or has had with the employer (including, where the employer is a company within the meaning of subsection (11) of section 435 of the Insolvency Act 1986 (c. 45), whether the person has or has had control of the employer within the meaning of subsection (10) of that section),
(c)any connection or involvement which the person has or has had with the scheme,
(d)if the act or failure to act was a notifiable event for the purposes of section 69 (duty to notify the Regulator of certain events), any failure by the person to comply with any obligation imposed on the person by subsection (1) of that section to give the Regulator notice of the event,
(e)all the purposes of the act or failure to act (including whether a purpose of the act or failure was to prevent or limit loss of employment),
(f)the financial circumstances of the person, and
(g)such other matters as may be prescribed.
(8)For the purposes of this section references to a debt due under section 75 of the Pensions Act 1995 (c. 26) include a contingent debt under that section.
(9)Accordingly, in the case of such a contingent debt, the reference in subsection (5)(a)(ii) to preventing a debt becoming due is to be read as including a reference to preventing the occurrence of any of the events specified in section 75(4C)(a) or (b) of that Act upon which the debt is contingent.
(10)For the purposes of this section—
(a)section 249 of the Insolvency Act 1986 (connected persons) applies as it applies for the purposes of any provision of the first Group of Parts of that Act,
(b)section 435 of that Act (associated persons) applies as it applies for the purposes of that Act, and
(c)section 74 of the Bankruptcy (Scotland) Act 1985 (c. 66) (associated persons) applies as it applies for the purposes of that Act.
(11)For the purposes of this section “insolvency practitioner”, in relation to a person, means—
(a)a person acting as an insolvency practitioner, in relation to that person, in accordance with section 388 of the Insolvency Act 1986, or
(b)an insolvency practitioner within the meaning of section 121(9)(b) (persons of a prescribed description).
Modifications etc. (not altering text)
C1Pt. 1 applied in part (with modifications) (20.7.2005 for specified purposes, 1.9.2005 for specified purposes, 5.12.2005 for specified purposes) by The Financial Assistance Scheme Regulations 2005 (S.I. 2005/1986), regs. 1(1), 4, Sch. 1
C2Ss. 38-56 modified (1.9.2005) by The Pensions Regulator (Financial Support Directions etc.) Regulations 2005 (S.I. 2005/2188), regs. 1, 15, 16
Commencement Information
I1S. 38(1)(a)(2)(3)(5)(6)(7)(a)-(f)(8)-(11) in force in so far as not already in force except subsections (4) and (7)(g) at 6.4.2005 by S.I. 2005/275, art. 2(7), Sch. Pt. 7
I2S. 38(1)(b) in force for the purpose only of conferring power to make regulations, orders or rules, as the case may be, 10.2.2005; and for all other purposes at 6.4.2005 in so far as not already in force by S.I. 2005/275, art. 2(3), Sch. Pt. 3