The Occupational Pension Schemes (Scheme Funding) Regulations 2005

Exemptions - general

17.—(1) Part 3 of the 2004 Act does not apply to—

(a) a scheme which—

(i) is established by or under an enactment (including a local Act), and

(ii) is guaranteed by a public authority;

(b) a pay-as-you-go scheme;

(c) a scheme which is made under section 2 of the Parliamentary and other Pensions Act 1987(1) (power to provide for pensions for Members of the House of Commons etc.);

(d) a scheme which is treated as such by virtue of paragraph 4 or 5 of Schedule 2 to these Regulations and—

(i) in the cases described in paragraphs 4(2) and 5(2)(a) of that Schedule, applies to members in employment outside the member States, and

(ii) in the cases described in paragraphs 4(3) and 5(2)(b) of that Schedule, applies to members in employment outside the United Kingdom;

(e) a scheme which—

(i) provides relevant benefits;

(ii) is neither a relevant statutory scheme nor a tax approved scheme, or, from 6th April 2006, is not a tax registered scheme, and

(iii) has fewer than 100 members;

(f) a section 615(6) scheme which has fewer than 100 members;

(g) a scheme which has fewer than two members;

(h) a scheme which has fewer than 12 members, where all the members are trustees of the scheme and either—

(i) the provisions of the scheme provide that all decisions which fall to be made by the trustees are made by the unanimous agreement of the trustees who are members of the scheme, or

(ii) the scheme has a trustee who is an independent trustee in relation to the scheme for the purposes of section 23 of the 1995 Act(2) (power to appoint independent trustees) and is registered in the register maintained by the Authority in accordance with regulations made under subsection (4) of that section;

(i) a scheme which has fewer than 12 members, where a company is a trustee of the scheme and all the members of the scheme are directors of the company and either—

(i) the provisions of the scheme provide that any decision made by the company in its capacity as trustee is made only by the unanimous agreement of the directors who are members of the scheme, or

(ii) one of the directors is a trustee who is independent in relation to the scheme for the purposes of section 23 of the 1995 Act and is registered in the register maintained by the Authority in accordance with regulations made under subsection (4) of that section;

(j) a scheme under which the only benefits provided for (other than money purchase benefits) are death benefits, if the death benefits are secured by insurance policies or annuity contracts;

(k) a scheme which is the subject of a scheme failure notice under section 122 or 130 of the 2004 Act;

(l) subject to regulation 18, a scheme which is being wound up, or

(m) the Chatsworth Settlement Estate Pension Scheme.

(2) In paragraph (1)—

“enactment” includes an enactment comprised in, or in an instrument under, an Act of the Scottish Parliament;

“pay-as-you-go scheme” means an occupational pension scheme under which there is no requirement for assets to be set aside in advance for the purpose of providing benefits under the scheme (disregarding any requirements relating to additional voluntary contributions);

“public authority” means—

(a)

a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975)(3);

(b)

a government department (including any body or authority exercising statutory functions on behalf of the Crown);

(c)

the Scottish Ministers;

(d)

the National Assembly for Wales, or

(e)

a local authority;

“relevant benefits” has the meaning given in section 612(1) of the Income and Corporation Taxes Act 1988(4) (interpretation) or, from 6th April 2006, section 393B of the Income Tax (Earnings and Pensions) Act 2003(5) (relevant benefits);

“relevant statutory scheme” has the meaning given in section 611A(1) of the Income and Corporation Taxes Act 1988(6) (definition of relevant statutory scheme);

“section 615(6) scheme” means a scheme with such a superannuation fund as is mentioned in section 615(6) of the Income and Corporation Taxes Act 1988(7) (funds for the provision of benefits in respect of employment outside the United Kingdom);

“a tax approved scheme” means a scheme which is approved or was formerly approved under section 590 or 591 of the Income and Corporation Taxes Act 1988(8) (approval of retirement benefit schemes) or in respect of which an application for such approval has been duly made but has not been determined;

“a tax registered scheme” means a scheme which is, or is treated as, registered under Chapter 2 of Part 4 of the Finance Act 2004 (registration of pension schemes).

(3) In paragraph (2), “local authority” means—

(a) in relation to England, a county council, a district council, a London borough council, the Greater London Authority, the Common Council of the City of London in its capacity as a local authority or the Council of the Isles of Scilly;

(b) in relation to Wales, a county council or county borough council;

(c) in relation to Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994(9) (constitution of councils);

(d) an administering authority as defined in Schedule 1 to the Local Government Pension Scheme Regulations 1997(10).

(4) Where Part 3 of the 2004 Act ceases to apply to a scheme to which it previously applied, because the scheme satisfies any of the criteria for exemption in paragraph (1), that does not affect any rights or obligations arising before Part 3 ceased to apply.

(1)

1987 c. 45.

(2)

Section 23 was substituted by the Pensions Act 2004, section 36(3).

(3)

1975 c. 26.

(4)

1988 c. 1; the definition of “relevant benefits” was amended by paragraph 10(1) of Schedule 10 to the Finance Act 1999 (c. 16). Section 612(1) is repealed by Part 3 of Schedule 42 to the Finance Act 2004 (c. 12) with effect from 6th April 2006.

(5)

2003 c. 1; section 393B is inserted by section 249(3) of the Finance Act 2004 with effect from 6th April 2006..

(6)

Section 611A was inserted by paragraph 15 of Schedule 6 to the Finance Act 1989 (c. 26) and amended by paragraph 5 of Schedule 5 to the Finance Act 1999. The section is repealed by Part 3 of Schedule 42 to the Finance Act 2004 with effect from 6th April 2006.

(7)

Section 615(6) was amended by paragraph 11 of Schedule 10 to the Finance Act 1999.

(8)

Section 590 is amended by paragraph 3 of Schedule 6 to the Finance Act 1989.

(9)

1994 c. 39.

(10)

S.I. 1997/1612.