Social Security Act 1973

63 Requirements relating to preservation of benefits.

(1) The requirements of this Part of this Act relating to preservation of benefit under occupational pension schemes (" the preservation requirements ") are those set out in Part I of Schedule 16 to this Act; and Part II of that Schedule shall have effect for enabling the Secretary of State to make regulations modifying the preservation requirements and generally in relation to the preservation of benefit under occupational pension schemes.

(2) This section shall have effect for securing that occupational pension schemes in force on the appointed day or coming into force thereafter conform with the preservation requirements in so far as conformity can be achieved by the use of powers conferred by this section (in addition to any powers otherwise exercisable) on those concerned with such schemes and on the Occupational Pensions Board.

(3) It is hereby declared that nothing in the foregoing provisions of this section or in Schedule 16 to this Act is to be taken—

(a) to apply with direct effect to any scheme (whether having effect before or after this section comes into force), or to the rights or liabilities of any person in, under or by virtue of a scheme ; or

(b) to preclude a scheme from being so framed as to provide benefits on any ampler scale, or (subject to any express provision made in the Schedule) payable at any earlier time or otherwise more favourable to beneficiaries, than is called for by the preservation requirements.

(4) In the case of an occupational pension scheme whose resources are derived as mentioned in section 51(4)(a) of this Act, it shall be the responsibility—

(a) of the trustees and managers of the scheme or, in the case of a public service pension scheme, of the Minister, government department or other person or body concerned with its administration, to take such steps as are open to them for bringing the scheme into conformity (if it does not otherwise conform) with the preservation requirements; and

(b) of the Occupational Pensions Board to advise the trustees and managers, or, if it is a public service pension scheme, the Minister, department or others concerned with the scheme as to whether it does or does not (in the Board's opinion) conform with those requirements and, if the Board are of opinion that the scheme does not conform, to indicate the steps which they consider should be taken with a view to securing conformity;

and the following provisions of this section shall have effect in relation to schemes whose resources are so derived, but not in relation to public service pension schemes.

(5) On an application made to them in respect of an occupational pension scheme by persons competent to make such an application in respect of it, the Occupational Pensions Board shall issue a determination as to whether or not the scheme conforms with the preservation requirements; and the persons competent to make such an application in respect of a scheme are—

(a) the trustees or managers of the scheme;

(b) any person other than the trustees or managers who has power to alter any of the rules of the scheme;

(c) any person who is an employer of persons in service in an employment to which the scheme applies;

(d) any member or prospective member of the scheme;

(e) such other persons as regulations may specify, in relation to any category of schemes into which the scheme falls, as being proper persons to make an application for the purposes of this section in respect of a scheme of that category.

(6) The Board may at any time of their own motion issue, in respect of a scheme which has come to their notice (including in particular a scheme which they are considering with a view to recognition, or one in respect of which an application has been made to them under section 64 of this Act for an order authorising the modification of the scheme, or modifying it), any determination which they could issue in the case of that scheme on an application to them under subsection (5) above.

(7) If the Board determine, in the case of a scheme, that it does not conform with the preservation requirements they shall, either at the time of issuing their determination or as soon thereafter as they think expedient—

(a) by order direct the trustees or managers of the scheme, or any such persons as are referred to in subsection (5) (b) above, to exercise such powers as they possess for modifying the scheme with a view to bringing it into conformity with those requirements (for which purpose the Board shall include in their order such directions as they think appropriate to indicate the modification appearing to them to be called for); or

(b) if there is no person with power to modify the scheme as required by the Board, by order authorise the trustees or managers, or other persons named in the order (who may in particular include such an employer as is specified in subsection (5)(c) above) to make that modification; or

(c) themselves by order modify the scheme with a view to achieving the purposes above-mentioned.

(8) The Board may exercise their powers under subsection (7) above from time to time in relation to any scheme in respect of which they have issued a determination under this section, and may exercise the powers together or separately.

(9) Any modification of a scheme made in pursuance of an order of the Board under subsection (7)(6) or (c) above shall be as effective in law as if it had been made under powers conferred by or under the scheme; and such an order may be made and complied with in relation to a scheme—

(a) notwithstanding any enactment or rule of law, or any rule of the scheme, which would otherwise operate to prevent the modification being made;

(b) without regard to any such enactment, rule of law or rule of the scheme as would otherwise require, or might otherwise be taken to require, the implementation of any procedure, or the obtaining of any consent, with a view to the making of the modification.

(10) An order of the Board under subsection (7) (a) above may require persons to exercise a power retrospectively (whether or not the power could otherwise be so exercised), and an order under subsection (7)(b) or (c) may operate retrospectively; and in this subsection " retrospectively " means with effect from a date before that on which the power is exercised or, as the case may be, the order is made, not being in either case a date earlier than the appointed day.

(11) At any time when the Board are concerned with an occupational pension scheme for the purposes of issuing a determination under this section, they may include a determination (whether or not applied for) as to any of the particular matters specified in Part I of Schedule 16 to this Act (including that Part as modified by regulations under Part II of that Schedule).

(12) For the purpose of arriving at a determination under this section in respect of a scheme the Board may, if they think it expedient having regard—

(a) to the structure and character of the scheme ; and

(b) to any anomalous or impractical consequences that may be expected to follow from its modification to achieve conformity with any particular provision of Part I of Schedule 16 to this Act (including that Part as modified under Part II of that Schedule),

disregard that provision in relation to the scheme, or direct that it be applied with such modification as may be specified in their determination.