The Occupational Pension Schemes (Payments to Employers) Regulations (Northern Ireland) 1997

Payments from Surplus — Ongoing Schemes

Notice of proposed payment from surplus

4.—(1) For the purposes of Article 37 (which sets out the requirements which must be satisfied before a power to make payments to the employer out of funds held for the purposes of a scheme may be exercised) the prescribed requirements as to notice referred to in Article 37(4)(e) are set out in paragraphs (2) to (5).

(2) The trustees shall take all reasonable steps to ensure that each member is given 2 written notices in accordance with the following provisions of this regulation.

(3) The first notice shall be given after proposals to reduce or eliminate a surplus have been approved under paragraph 6(1) of Schedule 22 to the Taxes Act 1988. It shall—

(a) inform the member as to—

(i) how it is proposed that the surplus shall be reduced or eliminated, by reference to the ways permitted under paragraph 3(3) of that Schedule; and

(ii) whether the requirements of Article 37(4) are satisfied;

(b) invite the member, if he wishes, to make written representations in relation to the proposals to the trustees before a specified date (which is not earlier than 2 months from the date on which the first notice is given);

(c) advise the member—

(i) that a second notice will be given to him if the trustees intend to proceed with the proposals; and

(ii) that no payment may be made to the employer in accordance with the proposals until at least 3 months after the date on which the second notice is given.

(4) The second notice shall be given after the date specified in accordance with paragraph (3)(b) and at least 3 months before the power is exercised. It shall—

(a) contain the information referred to in paragraph (3)(a), including any modifications to the proposals; and

(b) advise the member that he may make written representations to the Authority before a specified date (which is not earlier than 3 months from the date on which the second notice is given) if he considers that any of the requirements of Article 37(4) are not satisfied.

(5) For the purposes of paragraph (2)—

(a) a notice shall be treated as having been given to a member if it has been sent to him by post either at the address at which he was last known to be living or, in the case of an active member, at an address at which he is known to be currently employed; and

(b) notices are not required to be given where a member has no known address or where correspondence sent to a member’s last known address has been returned.

Circumstances in which the Authority must be satisfied that the requirements of Article 37 are met

5.—(1) For the purposes of Article 37(3) (which provides that, in prescribed circumstances, the power to make payments to an employer out of funds held for the purposes of a scheme cannot be exercised unless the Authority are of the opinion that the requirements of Article 37(4) and any prescribed requirements are satisfied) the prescribed circumstances are—

(a) that, subject to paragraph (2) of this regulation, the Authority receive (in relation to any proposals to which that Article applies)—

(i) written representations from a member to the effect that any of the requirements of Article 37(4) are not satisfied; or

(ii) information from any source sufficient to raise a doubt as to whether all those requirements are satisfied; and

(b) the Authority notify the trustees in writing that no payment should be made to the employer in accordance with the proposals until the Authority have confirmed in writing that the Authority are satisfied that those requirements are satisfied.

(2) Where the trustees have given notice to a member in accordance with regulation 4, paragraph (1)(a)(i) shall only apply in the case of representations received by the Authority from the member before the date specified in accordance with regulation 4(4)(b) (expiry date of the second notice).

Additional requirement for the purposes of Article 37

6.—(1) For the purposes of Article 37(3) (which provides for requirements to be prescribed in addition to those mentioned in Article 37(4)) the requirement set out in paragraph (2) of this regulation applies where—

(a) the date specified in accordance with regulation 4(4)(b) (expiry date of the second notice) has passed; and

(b) the trustees have not received notification from the Authority in accordance with regulation 5(1)(b).

(2) The requirement is that the trustees obtain written confirmation from the Authority that the Authority have not received any representations or information referred to in regulation 5(1)(a) and accordingly Article 37(5) does not apply.