The Pensions (Northern Ireland) Order 1995

Independent trustees N.I.

Circumstances in which following provisions apply N.I.

22 .F1 —(1 )F1  This Article applies in relation to a trust scheme—

(a) if a person (referred to in this Article and Articles 23[F2 to 26] as “the practitioner”) begins to act as an insolvency practitioner in relation to a company which, or an individual who, is the employer in relation to the scheme, or

(b) if the official receiver becomes—

(i) the liquidator or provisional liquidator of a company which is the employer in relation to the scheme,F2 . . .

[F2 (ia) the interim receiver of the property of a person who is the employer in relation to the scheme, or]

(ii) the receiver and the manager, or the trustee, of the estate of a bankrupt who is the employer in relation to the scheme.

(2 )F1  Where this Article applies in relation to a scheme[F2 by virtue of paragraph (1)], it ceases to do so—

(a) if some person other than the employer mentioned in paragraph (1) becomes the employer, or

(b) if at any time neither the practitioner nor the official receiver is acting in relation to the employer;

but this paragraph does not affect the application of this Article in relation to the scheme on any subsequent occasion when the conditions specified in paragraph (1)(a) or (b) are satisfied in relation to it.

[F2 (2A )F1  To the extent that it does not already apply by virtue of paragraph (1), this Article also applies in relation to a trust scheme—

(a) at any time during an assessment period (within the meaning of Article 116 of the Pensions (Northern Ireland) Order 2005) in relation to the scheme, and

(b) at any time, not within sub-paragraph (a), when the scheme is authorised under Article 137 of that Order (closed schemes) to continue as a closed scheme.]

[F2 (2B )F1  The responsible person must, as soon as reasonably practicable, give notice of an event within paragraph (2C) to—

(a) the Authority,

(b) the Board of the Pension Protection Fund, and

(c) the trustees of the scheme.

(2C )F1  The events are—

(a) the practitioner beginning to act as mentioned in paragraph (1)(a), if immediately before he does so this Article does not apply in relation to the scheme;

(b) the practitioner ceasing to so act, if immediately after he does so this Article does not apply in relation to the scheme;

(c) the official receiver beginning to act in a capacity mentioned in paragraph (1)(b)(i), (ia) or (ii), if immediately before he does so this Article does not apply in relation to the scheme;

(d) the official receiver ceasing to act in such a capacity, if immediately after he does so this Article does not apply in relation to the scheme.

(2D )F1  For the purposes of paragraph (2B) “the responsible person” means—

(a) in the case of an event within paragraph (2C)(a) or (b), the practitioner, and

(b) in the case of an event within paragraph (2C)(c) or (d), the official receiver.

(2E )F1  Regulations may require prescribed persons in prescribed circumstances where this Article begins or ceases to apply in relation to a trust scheme by virtue of paragraph (2A) to give a notice to that effect to—

(a) the Authority,

(b) the Board of the Pension Protection Fund, and

(c) the trustees of the scheme.

(2F )F1  A notice under paragraph (2B), or under regulations under paragraph (2E), must be in writing and contain such information as may be prescribed.]

(3 )F1  In this Article and Articles 23[F2 to 26]

• “acting as an insolvency practitioner” and “official receiver” shall be construed in accordance with Articles 3 and 2 of the Insolvency (Northern Ireland) Order 1989, “bankrupt” has the meaning given by Article 9 of the Insolvency (Northern Ireland) Order 1989F3 ,

• “company” means a company [F4 as defined in section 1(1) of the Companies Act 2006] or a company which may be wound up under Part VI of the Insolvency (Northern Ireland) Order 1989 (unregistered companies).

F1 mod. by SR 2005/169

F2 2005 NI 1

F3 1989 NI 19

F4 Art. 22(3): words in the definition of "company" substituted (1.10.2009) by Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 2(1), Sch. 1 para. 158 (with art. 10)

[F5 Power to appoint independent trustees N.I.

23 .F6 — (1) While Article 22 applies in relation to a trust scheme, the Authority may by order appoint as a trustee of the scheme a person who—

(a) is an independent person in relation to the scheme, and

(b) is registered in the register maintained by the Authority in accordance with regulations under paragraph (4).

(2) In relation to a particular trust scheme, no more than one trustee may at any time be an independent trustee appointed under paragraph (1).

(3) For the purposes of this Article a person is independent in relation to a trust scheme only if—

(a) he has no interest in the assets of the employer or of the scheme otherwise than as trustee of the scheme,

(b) he is neither connected with, nor an associate of—

(i) the employer,

(ii) any person for the time being acting as an insolvency practitioner in relation to the employer, or

(iii) the official receiver acting in any of the capacities mentioned in Article 22(1)(b) in relation to the employer, and

(c) he satisfies any prescribed requirements;

and any reference in this Part to an independent trustee is to be construed accordingly.

(4) Regulations must provide for the Authority to compile and maintain a register of persons who satisfy the prescribed conditions for registration.

(5) Regulations under paragraph (4) may provide—

(a) for copies of the register or of extracts from it to be provided to prescribed persons in prescribed circumstances;

(b) for the inspection of the register by prescribed persons in prescribed circumstances.

(6) The circumstances which may be prescribed under paragraph (5)(a) or (b) include the payment by the person to whom the copy is to be provided, or by whom the register is to be inspected, of such reasonable fee as may be determined by the Authority.

(7) This Article is without prejudice to the powers conferred by Article 7.]

F5 2005 NI 1

F6 mod. by SR 2005/169

Appointment and powers of independent trustees: further provisions N.I.

25 .F7 —(1) If, immediately before the appointment of an independent trustee under [F8 Article 23(1)], there is no trustee of the scheme other than the employer, the employer shall cease to be a trustee upon the appointment of the independent trustee.

(2) While Article 22 applies in relation to a scheme[F8 and there is an independent trustee of the scheme appointed under Article 23(1)]

(a) any power vested in the trustees of the scheme and exercisable at their discretion may be exercised only by the independent trustee, and

(b) any power—

(i) which the scheme confers on the employer (otherwise than as trustee of the scheme), and

(ii) which is exercisable by him at his discretion but only as trustee of the power,

may be exercised only by the independent trustee,

F8 . . .

(3) While Article 22 applies in relation to a scheme[F8 and there is an independent trustee of the scheme appointed under Article 23(1), the independent trustee may not] be removed from being a trustee by virtue only of any provision of the scheme.

(4) If a trustee appointed under[F8 Article 23(1)] ceases to be an independent person[F8 (within the meaning of Article 23(3))], then—

[F8 (a) he must as soon as reasonably practicable give written notice of that fact to the Authority, and]

(b) subject to paragraph (5), he shall cease to be a trustee of the scheme.

(5) If, in a case where paragraph (4) applies, there is no other trustee of the scheme than the former independent trustee, he shall not cease by virtue of that paragraph to be a trustee until such time as another trustee is appointed.

[F8 (5A) Article 10 applies to any person who, without reasonable excuse, fails to comply with paragraph (4)(a).]

[F8 (6) An order under Article 23(1) may provide for any fees and expenses of the trustee appointed under the order to be paid—

(a) by the employer,

(b) out of the resources of the scheme, or

(c) partly by the employer and partly out of those resources.

(7) Such an order may also provide that an amount equal to the amount (if any) paid out of the resources of the scheme by virtue of paragraph (6)(b) or (c) is to be treated for all purposes as a debt due from the employer to the trustees of the scheme.

(8) Where, by virtue of paragraph (6)(b) or (c), an order makes provision for any fees or expenses of the trustee appointed under the order to be paid out of the resources of the scheme, the trustee is entitled to be so paid in priority to all other claims falling to be met out of the scheme's resources.]

F7 mod. by SR 2005/169

F8 2005 NI 1

Insolvency practitioner or official receiver to give information to trustees N.I.

26 .F9 —(1) Not withstanding anything in Article 133 of the Insolvency (Northern Ireland) Order 1989F10 (court orders for inspection, etc.), while Article 22 applies in relation to a scheme[F11 by virtue of paragraph (1) of that Article], the practitioner or official receiver must provide the trustees of the scheme, as soon as practicable after the receipt of a request, with any information which the trustees may reasonably require for the purposes of the scheme.

(2) Any expenses incurred by the practitioner or official receiver in complying with a request under paragraph (1) are recoverable by him as part of the expenses incurred by him in discharge of his duties.

(3) The practitioner or official receiver is not required under paragraph (1) to take any action which involves expenses that cannot be so recovered, unless the trustees of the scheme undertake to meet them.

F9 mod. by SR 2005/169

F10 1989 NI 19

F11 2005 NI 1

Arts. 26A - 26C rep. by 2005 NI 1