Part I Preliminary
I11 Categories of pension schemes.
In this Act, unless the context otherwise requires—
“occupational pension scheme” means any scheme or arrangement which is comprised in one or more instruments or agreements and which has, or is capable of having, effect in relation to one or more descriptions or categories of employments so as to provide benefits, in the form of pensions or otherwise, payable on termination of service, or on death or retirement, to or in respect of earners with qualifying service in an employment of any such description or category;
“personal pension scheme” means any scheme or arrangement which is comprised in one or more instruments or agreements and which has, or is capable of having, effect so as to provide benefits, in the form of pensions or otherwise, payable on death or retirement to or in respect of F385earners (whether employed or self-employed) who have made arrangements with the trustees or managers of the scheme for them to become members of it;
“public service pension scheme” means an occupational pension scheme established by or under an enactment or the Royal prerogative or a Royal charter, being a scheme—
- a
all the particulars of which are set out in, or in a legislative instrument made under, an enactment, Royal warrant or charter, or
- b
which cannot come into force, or be amended, without the scheme or amendment being approved by a Minister of the Crown or government department F358or by the Scottish Ministers,
and includes any occupational pension scheme established, with the concurrence of the Treasury, by or with the approval of any Minister of the Crown F359or established by or with the approval of the Scottish Ministers and any occupational pension scheme prescribed by regulations made by the Secretary of State and the Treasury jointly as being a scheme which ought in their opinion to be treated as a public service pension scheme for the purposes of this Act.
- a
Part II Administration
The Occupational Pensions Board
F1112 Constitution and functions of the Board.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1113 Membership of the Board.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1114 Reports of the Board.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1115 Further provisions as to constitution and procedure of the Board.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Registration of schemes
E1I16 Registration of occupational and personal pension schemes.
1
The Secretary of State may by regulations make provision—
a
for the compilation and maintenance of a register of occupational and personal pension schemes (in this Act referred to as “the register”);
b
for the appointment of a Registrar of Occupational and Personal Pension Schemes (in this Act referred to as “the Registrar”); and
c
for conferring on the Registrar such functions relating to the compilation and maintenance of the register as may be specified in the regulations.
2
The regulations—
a
may make provision with respect to any of the following matters, that is to say—
i
the remuneration and expenses, and any pensions, allowances or gratuities, or compensation for loss of office, payable to or in respect of the Registrar;
ii
the staff and other facilities that are to be available to the Registrar;
iii
the other terms and conditions upon which the Registrar is to hold office; and
iv
the removal of the Registrar from office; and
b
may confer upon the Registrar power to appoint an agent to perform any of his functions on his behalf.
3
The register—
a
may consist of one or more parts, as may be prescribed;
b
shall be organised in such manner, and contain such information relating to occupational and personal pension schemes, as may be prescribed; and
c
subject to the regulations, may be kept in such manner and form as the Registrar may think fit.
4
The regulations may make provision—
a
for the register, or extracts from the register, or for copies of the register or of extracts from the register, to be open to inspection by, and
b
for copies of the register, or of extracts from it, to be supplied to,
such persons, in such manner, at such times, upon payment of such fees, and subject to such other terms and conditions, as may be prescribed.
5
The regulations may require—
a
any person who is or has been—
i
a trustee or manager of an occupational or personal pension scheme or an administrator of a public service pension scheme, or
ii
the employer in relation to employment of any description or category to which an occupational pension scheme relates, and
b
such other persons as may be prescribed,
to provide the Registrar with such information for the purposes of the register in such form and within such time as may be prescribed.
F475A
The regulations may make provision for information obtained by or furnished to the Registrar under or for the purposes of this Act to be disclosed to the Regulatory Authority or the Pensions Compensation Board
6
The Secretary of State may direct the Registrar to submit to him, in such form and at such intervals as may be specified in the direction, such statistical and other reports as the Secretary of State may require; and the Secretary of State may determine at his discretion whether or not to publish a report submitted to him under this subsection.
7
F498
Nothing in this Act or the Pensions Act 1995 shall be taken to imply that the Regulatory Authority may not be appointed as the Registrar.
C6C17C42C39C56C57Part III Certification of Pension Schemes and Effects on Members’ State Scheme Rights and Duties
Pt. III: power to modify conferred (1.6.1996 for specified purposes, 6.4.1997 in so far as not already in force) by Pensions Act 1995 (c. 26), ss. 149(1), 180(1); S.I. 1996/778, art. 2(6); S.I. 1997/664, art. 2(3), Sch. Pt. 2
Pt. III applied (with modifications) (6.4.1997) by The Occupational Pension Schemes (Mixed Benefit Contracted-out Schemes) Regulations 1996 (S.I. 1996/1977), regs. 1(1), 2(4)(a)-(f)
Pt. III applied (with modifications) (6.4.1997) by The Contracting-out (Transfer and Transfer Payment) Regulations 1996 (S.I. 1996/1462), regs. 1(1), 12, 13, Sch. 2 (with reg. 14, Sch. 4)
Pt. III: power to amend conferred (1.4.1999) by Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c. 2), ss. 23, 28(3); S.I. 1999/527, art. 2(b), Sch. 2 (with arts. 3-6)
Pt. III: power to transfer functions conferred (1.4.1999) by Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c. 2), ss. 23, 28(3); S.I. 1999/527, art. 2(b), Sch. 2 (with arts. 3-6)
C17C42C39C56C57Chapter I Certification
Preliminary
I17C42C39C17C56C57 Issue of contracting-out and appropriate scheme certificates.
1
C21a
that the employment of an earner in employed earner’s employment is contracted-out employment by reference to an occupational pension scheme; or
b
that a personal pension scheme is an appropriate scheme;
and in this Act a certificate under paragraph (a) is referred to as “a contracting-out certificate” and a certificate under paragraph (b) as “an appropriate scheme certificate”.
C222
The regulations shall provide for contracting-out certificates to be issued to employers and to specify—
a
the employments which are to be treated, either generally or in relation to any specified description of earners, as contracted-out employments; and
b
the occupational pension schemes by reference to which those employments are to be so treated.
F552A
The regulations may provide, in the case of contracting-out certificates issued before the principal appointed day, for their cancellation by virtue of the regulations—
a
at the end of a prescribed period beginning with that day, or
b
if prescribed conditions are not satisfied at any time in that period,
but for them to continue to have effect until so cancelled; and the regulations may provide that a certificate having effect on and after that day by virtue of this subsection is to have effect, in relation to any earner’s service on or after that day, as if issued on or after that day.
2B
In this Part, “the principal appointed day” means the day designated by an order under section 180 of the Pensions Act 1995 as the principal appointed day for the purposes of Part III of that Act
3
An occupational pension scheme is a contracted-out scheme in relation to an earner’s employment if it is for the time being specified in a contracting-out certificate in relation to that employment; and references in this Act to the contracting-out of a scheme are references to its inclusion in such a certificate.
4
A personal pension scheme is an appropriate scheme if there is in force an appropriate scheme certificate issued F118... in accordance with this Chapter that it is such a scheme.
5
An appropriate scheme certificate for the time being in force in relation to a scheme shall be conclusive that the scheme is an appropriate scheme.
6
Regulations shall provide that any question whether a personal pension scheme is or at any time was an appropriate scheme shall be determined by the F288Inland Revenue.
C237
Except in prescribed circumstances, no contracting-out certificate or appropriate scheme certificate shall have effect from a date earlier than that on which the certificate is issued.
I18C42C39C17C56C57 Meaning of “contracted-out employment”, “guaranteed minimum pension” and “minimum payment”.
1
The employment of an earner in employed earner’s employment is “contracted-out employment” in relation to him during any period in which he is under pensionable age and—
a
either—
i
F56his service in the employment is for the time being service which qualifies him for a pension provided by an occupational pension scheme contracted out by virtue of satisfying section 9(2) (in this Act referred to as “a salary related contracted-out scheme”)
ii
his employer makes minimum payments in respect of his employment to an occupational pension scheme which is contracted-out by virtue of satisfying section 9(3) (in this Act referred to as “a money purchase contracted-out scheme”); and
b
there is in force a contracting-out certificate issued by the F289Inland Revenue in accordance with this Chapter stating that the employment is contracted-out employment by reference to the scheme.
2
In this Act—
“guaranteed minimum pension” means any pension which is provided by an occupational pension scheme in accordance with the requirements of sections 13 and 17 to the extent to which its weekly rate is equal to the earner’s or, as the case may be, the earner’s widow’s or widower’s guaranteed minimum as determined for the purposes of those sections respectively; and
“minimum payment”, in relation to an earner’s employment in any tax week, means the rebate percentage of so much of the earnings paid to or for the benefit of the earner in that week as exceeds the current lower earnings limit but not the current upper earnings limit (or the prescribed equivalents if he is paid otherwise than weekly);
F120and for the purposes of this subsection “rebate percentage” means the appropriate flat rate percentage for the purposes of F355section 42A.
3
Regulations may make provision—
a
for the manner in which, and time at which or period within which, minimum payments are to be made;
b
for the recovery by employers of amounts in respect of the whole or part of minimum payments by deduction from earnings;
c
for calculating the amounts payable according to a scale prepared from time to time by the Secretary of State or otherwise adjusting them so as to avoid fractional amounts or otherwise facilitate computation;
d
for requiring that the liability in respect of a payment made in a tax week, in so far as the liability depends on any conditions as to a person’s age on retirement, shall be determined as at the beginning of the week or as at the end of it;
e
for securing that liability is not avoided or reduced by the payment of earnings being made in accordance with any practice which is abnormal for the employment in respect of which the earnings are paid;
f
without prejudice to paragraph (e), for enabling the F290Inland Revenue, where F290they are satisfied as to the existence of any practice in respect of the payment of earnings whereby the incidence of minimum payments is avoided or reduced by means of irregular or unequal payments of earnings, to give directions for securing that minimum payments are payable as if that practice were not followed;
g
for the intervals at which, for the purposes of minimum payments, payments of earnings are to be treated as made; and
h
for this section to have effect, in prescribed cases, as if for any reference to a tax week there were substituted a reference to a prescribed period.
4
Any contracting-out certificate for the time being in force in respect of an employed earner’s employment shall be conclusive that the employment is contracted-out employment.
F1195
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
General requirements for certification
I1C18C17C42C399C17C42C39C56C57 Requirements for certification of schemes: general.
1
Subject to subsection (4), an occupational pension scheme can be contracted-out in relation to an earner’s employment only if it satisfies subsection (2) or (3).
C402
F51An occupational pension scheme satisfies this subsection only if—
a
it complies in all respects with sections 13 to 24 or, in such cases or classes of case as may be prescribed, with those sections as modified by regulations; and
b
the rules of the scheme applying to guaranteed minimum pensions are framed so as to comply with the relevant requirements.
F51An occupational pension scheme satisfies this subsection only if—
a
in relation to any earner’s service before the principal appointed day, it satisfies the conditions of subsection (2A), and
b
in relation to any earner’s service on or after that day, it satisfies the conditions of subsection (2B).
2A
The conditions of this subsection are that—
a
the scheme complies in all respects with sections 13 to 23 or, in such cases or classes of case as may be prescribed, with those sections as modified by regulations, and
b
the rules of the scheme applying to guaranteed minimum pensions are framed so as to comply with the relevant requirements.
C282B
a
the scheme complies with section 12A,
C29b
restrictions imposed under section 40 of the Pensions Act 1995 (restriction on employer-related investments) apply to the scheme and the scheme complies with those restrictions,
c
the scheme satisfies such other requirements as may be prescribed (which—
i
must include requirements as to the amount of the resources of the scheme and,
ii
may include a requirement that, if the only members of the scheme were those falling within any prescribed class or description, the scheme would comply with section 12A); and
d
the scheme does not fall within a prescribed class or description,
and F292are satisfied that the rules of the scheme are framed so as to comply with the relevant requirements.
2C
Regulations may modify subsection (2B)(a) and (b) in their application to occupational pension schemes falling within a prescribed class or description.
C413
An occupational pension scheme satisfies this subsection only if—
a
the requirements imposed by or by virtue of sections F122... 26 to 32 and such other requirements as may be prescribed are satisfied in its case
F57aa
the F293Inland Revenue are satisfied that the scheme does not fall within a prescribed class or description; and
b
the rules of the scheme applying to protected rights are framed so as to comply with the relevant requirements.
4
Where there are two or more occupational pension schemes in force in relation to an earner’s employment, none of which can by itself be a contracted-out scheme, the F294Inland Revenue may, if they think fit, treat them for contracting-out purposes as a single scheme.
5
A personal pension scheme can be an appropriate scheme only if—
a
the requirements imposed by or by virtue of sections 26 to 32 and such other requirements as may be prescribed are satisfied in its case; and
b
the rules of the scheme applying to protected rights are framed so as to comply with the relevant requirements.
6
In this section “relevant requirements” means—
a
the requirements of any regulations prescribing the form and content of rules of contracted-out or, as the case may be, appropriate schemes; and
b
such other requirements as to form and content (not inconsistent with regulations) as may be imposed by the F121Secretary of State as a condition of contracting-out or, as the case may be, of being an appropriate scheme, either generally or in relation to a particular scheme.
I110C56C57 Protected rights and money purchase benefits.
1
Subject to F395the following provisions of this section, the protected rights of a member of a pension scheme are his rights to money purchase benefits under the scheme.
2
If the rules of an occupational pension scheme so provide, a member’s protected rights are—
a
b
any rights of the member to money purchase benefits which derive from protected rights under another occupational pension scheme or under a personal pension scheme which have been the subject of a transfer payment; and
c
such other rights as may be prescribed.
3
If the rules of a personal pension scheme so provide, a member’s protected rights are—
a
his rights under the scheme which derive from any payment of minimum contributions to the scheme; and
b
any rights of his to money purchase benefits which derive from protected rights under another personal pension scheme or protected rights under an occupational pension scheme which have been the subject of a transfer payment; and
c
such other rights as may be prescribed.
C76C78F4014
Where, in the case of a scheme which makes such provision as is mentioned in subsection (2) or (3), a member’s rights under the scheme become subject to a pension debit, his protected rights shall exclude the appropriate percentage of the rights which were his protected rights immediately before the day on which the pension debit arose.
C76C785
For the purposes of subsection (4), the appropriate percentage is—
a
if the order or provision on which the pension debit depends specifies the percentage value to be transferred, that percentage;
b
if the order or provision on which the pension debit depends specifies an amount to be transferred, the percentage which the appropriate amount for the purposes of subsection (1) of section 29 of the Welfare Reform and Pensions Act 1999 (lesser of specified amount and cash equivalent of transferor’s benefits) represents of the amount mentioned in subsection (3)(b) of that section (cash equivalent of transferor’s benefits).
I1C42C39C17C2411C42C39C17C56C57 Elections as to employments covered by contracting-out certificates.
1
Subject to the provisions of this Part, an employment otherwise satisfying the conditions for inclusion in a contracting-out certificate shall be so included if and so long as the employer so elects and not otherwise.
2
Subject to subsections (3) and (4), an election may be so made, and an employment so included, either generally or in relation only to a particular description of earners.
3
Except in such cases as may be prescribed, an employer shall not, in making or abstaining from making any election under this section, discriminate between different earners on any grounds other than the nature of their employment.
4
If the F296Inland Revenue consider that an employer is contravening subsection (3) in relation to any scheme, F297they may—
a
refuse to give effect to any election made by him in relation to that scheme; or
b
cancel any contracting-out certificate held by him in respect of it.
5
Regulations may make provision—
a
for regulating the manner in which an employer is to make an election with a view to the issue, variation or surrender of a contracting-out certificate;
b
for requiring an employer to give a notice of his intentions in respect of making or abstaining from making any such election in relation to any existing or proposed scheme—
i
to employees in any employment to which the scheme applies or to which it is proposed that it should apply;
ii
to any independent trade union recognised to any extent for the purpose of collective bargaining in relation to those employees;
iii
to the trustees and managers of the scheme; and
iv
to such other persons as may be prescribed;
c
for requiring an employer, in connection with any such notice, to furnish such information as may be prescribed and to undertake such consultations as may be prescribed with any such trade union as is mentioned in paragraph (b)(ii);
d
e
for referring to an industrial tribunal any question—
i
whether an organisation is such a trade union as is mentioned in paragraph (b)(ii), or
ii
whether the requirements of the regulations as to consultation have been complied with.
I1C19C17C42C3912C17C42C39 Determination of basis on which scheme is contracted-out.
1
A contracting-out certificate shall state whether the scheme is contracted-out by virtue of subsection (2) or (3) of section 9.
2
Where a scheme satisfies both of those subsections the employers, in their application for a certificate, shall specify one of those subsections as the subsection by virtue of which they wish the scheme to be contracted-out.
3
A scheme which has been contracted-out by virtue of one of those subsections may not become contracted-out by reason of the other except in prescribed circumstances.
F52Requirements for certification of occupational pension schemes applying from the principal appointed day of the Pensions Act 1995
Ss. 12A-12D and cross-heading inserted (6.4.1996 for specified purposes, 6.4.1997 in so far as not already in force) by Pensions Act 1995 (c. 26), ss. 136(5), 180(1); S.I. 1996/778, art. 2(5)(a)(7), Sch. Pt. 5
C42C39C1712AC42C39C17The statutory standard
1
Subject to the provisions of this Part, the scheme must, in relation to the provision of pensions for earners in employed earner’s employment, and for their widows or widowers, satisfy the statutory standard.
2
Subject to regulations made by virtue of section 9(2B)(c)(ii), in applying this section regard must only be had to—
a
earners in employed earner’s employment, or
b
their widows or widowers,
collectively, and the pensions to be provided for persons falling within paragraph (a) or (b) must be considered as a whole.
3
For the purposes of this section, a scheme satisfies the statutory standard if the pensions to be provided for such persons are broadly equivalent to, or better than, the pensions which would be provided for such persons under a reference scheme.
4
Regulations may provide for the manner of, and criteria for, determining whether the pensions to be provided for such persons under a scheme are broadly equivalent to, or better than, the pensions which would be provided for such persons under a reference scheme.
5
Regulations made by virtue of subsection (4) may provide for the determination to be made in accordance with guidance prepared from time to time by a prescribed body and approved by the Secretary of State.
6
The pensions to be provided for such persons under a scheme are to be treated as broadly equivalent to or better than the pensions which would be provided for such persons under a reference scheme if and only if an actuary (who, except in prescribed circumstances, must be the actuary appointed for the scheme in pursuance of section 47 of the Pensions Act 1995) so certifies.
C42C39C1712BC42C39C17Reference scheme
1
This section applies for the purposes of section 12A.
2
A reference scheme is an occupational pension scheme which—
a
complies with each of subsections (3) and (4), and
b
complies with any prescribed requirements.
3
In relation to earners employed in employed earner’s employment, a reference scheme is one which provides—
a
for them to be entitled to a pension under the scheme commencing at a normal pension age of 65 and continuing for life, and
b
for the annual rate of the pension at that age to be—
i
1/80th of average qualifying earnings in the last three tax years preceding the end of service,
multiplied by
ii
the number of years service, not exceeding such number as would produce an annual rate equal to half the earnings on which it is calculated.
4
In relation to widows or widowers, a reference scheme is one which provides—
a
for the widows or widowers of earners employed in employed earner’s employment (whether the earners die before or after attaining the age of 65) to be entitled, except in prescribed circumstances, to pensions under the scheme, and
F124b
for entitlements to those pensions to commence on the day following the death of the earners, and
c
except in prescribed circumstances, for the annual rate of those pensions to be—
i
if the earners die on or after their normal pension age, 50 per cent. of the annual rate which a reference scheme was required to provide to the deceased earners immediately before their death, or
ii
if the earners die before their normal pension age, 50 per cent. of the annual rate which a reference scheme would have been required to provide to the deceased earners if the date of their death had been their normal pension age, and
d
if those pensions are payable in respect of earners who die—
i
otherwise than in pensionable service under the scheme, and
ii
before their own entitlements to pensions under the scheme have commenced,
for those pensions to be revalued in accordance with section 84 as though they were such benefits as are mentioned in section 83(1)(a).
5
For the purposes of this section, an earner’s qualifying earnings in any tax year are 90 per cent. of the amount by which the earner’s earnings—
a
exceed the qualifying earnings factor for that year, and
b
do not exceed the upper earnings limit for that year multiplied by fifty-three.
6
Regulations may modify subsections (2) to (5).
7
In this section—
“normal pension age”, in relation to a scheme, means the age specified in the scheme as the earliest age at which pension becomes payable under the scheme (apart from any special provision as to early retirement on grounds of ill-health or otherwise),
“qualifying earnings factor”, in relation to a tax year, has the meaning given by section 122(1) of the [] Social Security Contributions and Benefits Act 1992, and
“upper earnings limit”, in relation to a tax year, means the amount specified for that year by regulations made by virtue of section 5(3) of that Act as the upper earnings limit for Class 1 contributions.
C42C39C17C4912CC42C39C17Transfer, commutation, etc
C431
Regulations may prohibit or restrict—
a
the transfer of any liability—
i
for the payment of pensions under a relevant scheme, or
ii
in respect of accrued rights to such pensions,
b
the discharge of any liability to provide pensions under a relevant scheme, or
c
the payment of a lump sum instead of a pension payable under a relevant scheme,
except in prescribed circumstances or on prescribed conditions.
2
In this section “relevant scheme” means a scheme contracted out by virtue of section 9(2B) of this Act and references to pensions and accrued rights under the scheme are to such pensions and rights so far as attributable to an earner’s service on or after the principal appointed day.
3
Regulations under subsection (1) may provide that any provision of this Part shall have effect subject to such modifications as may be specified in the regulations.
C42C39C1712DC42C39C17Entitlement to benefit
In the case of a scheme contracted out by virtue of section 9(2B) of this Act, regulations may make provision as to the ages by reference to which benefits under the scheme are to be paid
Requirements for certification of occupational pension schemes providing guaranteed minimum pensions
I113 Minimum pensions for earners.
1
Subject to the provisions of this Part, the scheme must—
a
provide for the earner to be entitled to a pension under the scheme if he attains pensionable age; and
b
contain a rule to the effect that the weekly rate of the pension will be not less than his guaranteed minimum (if any) under sections 14 to 16.
2
In the case of an earner who is a married woman or widow who is liable to pay primary Class 1 contributions at a reduced rate by virtue of section 19(4) of the M2Social Security Contributions and Benefits Act 1992, subject to the provisions of this Part, the scheme must—
a
provide for her to be entitled to a pension under the scheme if she attains pensionable ageF125...; and
b
satisfy such other conditions as may be prescribed.
3
Subject to subsection (4), the scheme must provide for the pension to commence on the date on which the earner attains pensionable age and to continue for his life.
4
Subject to subsection (5), the scheme may provide for the commencement of the earner’s guaranteed minimum pension to be postponed for any period for which he continues in employment after attaining pensionable age.
5
The scheme must provide for the earner’s consent to be required—
a
for any such postponement by virtue of employment to which the scheme does not relate; and
b
for any such postponement after the expiration of five years from the date on which he attains pensionable age.
6
Equivalent pension benefits for the purposes of the former legislation are not to be regarded as constituting any part of the earner’s guaranteed minimum pension.
7
The benefits referred to in subsection (6) are any to which the earner may be immediately or prospectively entitled in respect of a period of employment which—
a
was for him non-participating employment under that legislation; and
b
was not on its termination the subject of any payment in lieu of contributions;
but subsection (6) excludes only so much of those benefits as had to be provided in order that the employment should for that period be treated as non-participating.
8
In this section “the former legislation” means Part III of the M3National Insurance Act 1965 and the previous corresponding enactments.
I114C42C39C17C56C57 Earner’s guaranteed minimum.
C361
An earner has a guaranteed minimum in relation to the pension provided by a scheme if in any tax week in a relevant year, earnings in excess of the current lower earnings limit (or the prescribed equivalent if he is paid otherwise than weekly) have been paid to or for his benefit in respect of employment which is contracted-out by reference to the scheme.
C482
Subject to section 15(1), the guaranteed minimum shall be the weekly equivalent of an amount equal to the appropriate percentage of the total of the earner’s earnings factors for the relevant years, so far as derived from earnings such as are mentioned in subsection (1) upon which primary Class 1 contributions have been paid or treated as paid.
F1263
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
Where the amount of a person’s earnings for any period is relevant for any purpose of subsection (1) or (2) and the F299Inland Revenue are satisfied that records of those earnings have not been maintained or retained or are otherwise unobtainable, F300they may for that purpose—
a
5
In subsection (2) the “appropriate percentage” means—
a
in respect of the earner’s earnings factors for any tax year not later than the tax year 1987-88—
i
if the earner was not more than 20 years under pensionable age on 6th April 1978, 1.25 per cent.;
ii
in any other case 25/N per cent.;
b
in respect of the earner’s earnings factors for the tax year 1988-89 and for subsequent tax years—
i
if the earner was not more than 20 years under pensionable age on 6th April 1978, 1 per cent.;
ii
in any other case 20/N per cent.;
where N is the number of years in the earner’s working life (assuming he will attain pensionable age) which fall after 5th April 1978.
6
Regulations may prescribe rules as to the circumstances in which earnings factors are derived from earnings for the purposes of subsection (2).
7
For the purposes of subsection (2) the weekly equivalent of the amount there mentioned shall be calculated by dividing that amount by 52.
8
In this section “relevant year” means any tax year in the earner’s working life (not being earlier than the tax year 1978-79 F127or later than the tax year ending immediately before the principal appointed day).
I1C5915 Increase of guaranteed minimum where commencement of guaranteed minimum pension postponed.
C1C5C9C45C53C62C731
Where in accordance with section 13(4) the commencement of an earner’s guaranteed minimum pension is postponed for any period and there are at least seven complete weeks in that period, his guaranteed minimum in relation to the scheme shall, for each complete week in that period, be increased by one-seventh per cent.—
a
of the amount of that minimum apart from this subsection; or
b
if for that week (or a period which includes that week) a pension is paid to him under the scheme at a weekly rate less than that minimum, of the difference between that pension and that minimum.
2
In subsection (1) “week” means any period of seven consecutive days.
3
Where an earner’s guaranteed minimum is increased under subsection (1), the increase of that part of it which is attributable to earnings factors for the tax year 1987-88 and earlier tax years shall be calculated separately from the increase of the rest.
4
Where one or more orders have come into force under section 109 during the period for which the commencement of a guaranteed minimum pension is postponed, the amount of the guaranteed minimum for any week in that period shall be determined as if the order or orders had come into force before the beginning of the period.
C77C7915AF396Reduction of guaranteed minimum in consequence of pension debit.
1
Where—
a
an earner has a guaranteed minimum in relation to the pension provided by a scheme, and
b
his right to the pension becomes subject to a pension debit,
his guaranteed minimum in relation to the scheme is, subject to subsection (2), reduced by the appropriate percentage.
2
Where the earner is in pensionable service under the scheme on the day on which the order or provision on which the pension debit depends takes effect, his guaranteed minimum in relation to the scheme is reduced by an amount equal to the appropriate percentage of the corresponding qualifying benefit.
3
For the purposes of subsection (2), the corresponding qualifying benefit is the guaranteed minimum taken for the purpose of calculating the cash equivalent by reference to which the amount of the pension debit is determined.
4
For the purposes of this section the appropriate percentage is—
a
if the order or provision on which the pension debit depends specifies the percentage value to be transferred, that percentage;
b
if the order or provision on which the pension debit depends specifies an amount to be transferred, the percentage which the appropriate amount for the purposes of subsection (1) of section 29 of the Welfare Reform and Pensions Act 1999 (lesser of specified amount and cash equivalent of transferor’s benefits) represents of the amount mentioned in subsection (3)(b) of that section (cash equivalent of transferor’s benefits).
I1C32C42C39C1716C42C39C17 Revaluation of earnings factors for purposes of s. 14: early leavers etc.
C371
Subject to subsection (2), for the purpose of section 14(2) the earner’s earnings factor for any relevant year (so far as derived as mentioned in that section) shall be taken to be that factor as increased by the same percentage as that prescribed for the increase of that factor by the last order under section 21 of the M4Social Security Pensions Act 1975 or section 148 of the M5Social Security Administration Act 1992 to come into force before the end of the final relevant year.
C382
The scheme may provide that the earnings factors of an earner whose service in contracted-out employment by reference to the scheme is terminated before the final relevant year shall be determined for the purposes of section 14(2) by reference to the last such order to come into force before the end of the tax year in which that service ends (“the last service tax year”).
3
Where a scheme provides as mentioned in subsection (2) the scheme shall provide for the weekly equivalent mentioned in section 14(2) to be increased by at leastF85...
F85
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F85
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F85the prescribed percentage for each relevant year after the last service tax year; and the provisions included by virtue of this subsection may also conform with such additional requirements as may be prescribed.
4
Except in such cases or classes of case as may be prescribed, the provision made by virtue of subsections (2) and (3) must be the same for all members of the scheme.
5
I117C56C57 Minimum pensions for widows and widowers.
1
Subject to the provisions of this Part, the scheme must provide that if the earner dies leaving a widow or widower (whether before or after attaining pensionable age), the widow or widower will be entitled to a guaranteed minimum pension under the scheme.
2
The scheme must contain a rule to the effect that—
a
if the earner is a man who has a guaranteed minimum under section 14, the weekly rate of the widow’s pension will be not less than the widow’s guaranteed minimum;
b
if the earner is a woman who has a guaranteed minimum under that section, the weekly rate of the widower’s pension will be not less than the widower’s guaranteed minimum.
3
The widow’s guaranteed minimum shall be half that of the earner.
4
The widower’s guaranteed minimum shall be one-half of that part of the earner’s guaranteed minimum which is attributable to earnings factors for the tax year 1988-89 and subsequent tax years.
F4404A
The scheme must provide for the widow or widower’s pension to be payable to the widow or widower—
a
for any period for which a Category B retirement pension is payable to the widow or widower by virtue of the earner’s contributions or would be so payable but for section 43(1) of the Social Security Contributions and Benefits Act 1992 (persons entitled to more than one retirement pension);
b
for any period for which widowed parent’s allowance or bereavement allowance is payable to the widow or widower by virtue of the earner’s contributions; and
c
in the case of a widow or widower whose entitlement by virtue of the earner’s contributions to a widowed parent’s allowance or bereavement allowance has come to an end at a time after the widow or widower attained the age of 45, for so much of the period beginning with the time when the entitlement came to an end as neither—
i
comprises a period during which the widow or widower and a person of the opposite sex are living together as husband and wife; nor
ii
falls after the time of any remarriage by the widow or widower.
5
6
The scheme F443must also make provision for the widower’s pension to be payable to him in the prescribed circumstances and for the prescribed period.
7
I118 Treatment of insignificant amounts.
1
Where an amount is required to be calculated in accordance with the provisions of sections 14(7), 15(1) or 17(2), (3) or (4) and, apart from this subsection, the amount so calculated is less than 0.5p, then, notwithstanding any other provision of this Act, that amount shall be taken to be zero, and other amounts so calculated shall be rounded to the nearest whole penny, taking 0.5p as nearest to the next whole penny above.
2
Where a guaranteed minimum pension is attributable in part to earnings factors for the period before the tax year 1988-89 and in part to earnings factors for that tax year or for that tax year and subsequent tax years, the pension shall be calculated by—
a
applying subsection (1) separately to the amount attributable to the period before the tax year 1988-89 and to the amount attributable to that and subsequent tax years, and
b
aggregating the two amounts so calculated.
I1C5019 Discharge of liability where guaranteed minimum pensions secured by insurance policies or annuity contracts.
1
A transaction to which this section applies discharges the trustees or managers of an occupational pension scheme from their liability to provide for or in respect of any person guaranteed minimum pensions—
a
if it is carried out not earlier than the time when that person’s pensionable service terminates; and
b
if and to the extent that it results in guaranteed minimum pensions for or in respect of that person being appropriately secured; and
c
if and to the extent that the requirements set out in paragraph (a), (b) or (c) of subsection (5) are satisfied.
2
This section applies to the following transactions—
a
the taking out of a policy of insurance or a number of such policies;
b
the entry into an annuity contract or a number of such contracts;
c
the transfer of the benefit of such a policy or policies or such a contract or contracts.
3
In this section “appropriately secured” means secured by an appropriate policy of insurance or an appropriate annuity contract, or by more than one such policy or contract.
4
A policy of insurance or annuity contract is appropriate for the purposes of this section if—
a
the F465insurer with which it is or was taken out or entered into—
i
is, or was at the relevant time, carrying on F466... long-term insurance business in the United Kingdom or any other member State; and
ii
satisfies, or at the relevant time satisfied, prescribed requirements; and
b
it may not be assigned or surrendered except on conditions which satisfy such requirements as may be prescribed; and
c
it contains or is endorsed with terms whose effect is that the amount secured by it may not be commuted except on conditions which satisfy such requirements as may be prescribed; and
d
it satisfies such other requirements as may be prescribed.
5
The requirements referred to in subsection (1) are—
a
that the arrangement for securing the amount by means of the policy or contract was made—
i
at the written request of the earner or, if the earner has died, of the earner’s widow or widower; or
ii
with the consent of the earner or the widow or widower given in writing in a prescribed form;
b
that—
i
the case is one such as is mentioned in section 96(2); and
ii
the policy or contract only secures guaranteed minimum pensions;
c
that—
i
the case is not one such as is mentioned in section 96(2); and
ii
such conditions as may be prescribed are satisfied.
6
In subsection (4)(a), “the relevant time” means the time when the policy of insurance was taken out or the annuity contract was entered into or, as the case may be, when the benefit of the policy or contract was transferred.
F4677
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I120 Transfer of accrued rights.
1
Regulations may prescribe circumstances in which and conditions subject to which—
a
a transfer of or a transfer payment in respect of—
i
an earner’s accrued rights to guaranteed minimum pensions under a contracted-out scheme;
ii
an earner’s accrued rights to pensions under an occupational pension scheme which is not contracted-out, to the extent that those rights derive from his accrued rights to guaranteed minimum pensions under a contracted-out scheme; or
iii
the liability for the payment of guaranteed minimum pensions to or in respect of any person who has become entitled to them,
may be made by an occupational pension scheme to another such scheme F444, to a personal pension scheme or to an overseas arrangement;
b
a transfer of or a transfer payment in respect of an earner’s accrued rights to guaranteed minimum pensions which are appropriately secured for the purposes of section 19 may be made to an occupational pension scheme F445, a personal pension scheme or an overseas arrangement.
2
Any such regulations may be made so as to apply to earners who are not in employment at the time of the transfer.
3
Regulations under subsection (1) may provide that any provision of this Part (other than sections 18, 19 and 43 to 45, and sections 26 to 33 so far as they apply to personal pension schemes) or of Chapter III of Part IV or Chapter II of Part V shall have effect, where there has been a transfer to which they apply, subject to such modifications as may be specified in the regulations.
4
Regulations under subsection (1) shall have effect in relation to transfers whenever made unless they provide that they are only to have effect in relation to transfers which take place after they come into force.
5
The power conferred by subsection (1) is without prejudice to the generality of section 182(2).
6
In the provisions mentioned in subsection (3) “accrued rights”, in relation to an earner, means the rights conferring prospective entitlement under the scheme in question to the pensions to be provided for the earner and the earner’s widow or widower in accordance with sections 13 and 17, and references to an earner’s accrued rights to guaranteed minimum pensions shall be construed accordingly.
I1C5121 Commutation, surrender and forfeiture.
1
Where the annual rate of a pension required to be provided by a scheme in accordance with section 13 or 17 would not exceed the prescribed amount and the circumstances are such as may be prescribed, the scheme may provide for the payment of a lump sum instead of that pension.
2
Neither section 13 nor section 17 shall preclude a scheme from providing for the earner’s or the earner’s widow’s or widower’s guaranteed minimum pension to be suspended or forfeited in such circumstances as may be prescribed.
F130I122 Financing of benefits.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I123C42C39C17 Securing of benefits.
F1311
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C202
Subject to subsection (3), the scheme must contain a rule by which any liabilities of the scheme in respect of—
a
guaranteed minimum pensions and accrued rights to guaranteed minimum pensions;
b
any such benefits as are excluded by section 13(6) from earners’ guaranteed minimum pensions;
c
pensions and other benefits (whether or not within paragraph (a) or (b)) in respect of which entitlement to payment has already arisen; and
d
state scheme premiums,
are accorded priority on a winding up over other liabilities under the scheme in respect of benefits attributable to any period of service after the rule has taken effect.
C203
The rule may also accord priority, on a winding up occurring after an earner has attained normal pension age, to liabilities of the scheme in respect of pensions and other benefits to which—
a
he will be entitled on ceasing to be in employment, or
b
the earner’s widow or widower or any dependant of the earner’s will be entitled on the earner’s death.
4
Subsections F132(2) and (3) do not apply to public service pension schemes.
F1335
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
Subsections (2) and (3) do not apply to schemes falling within any category or description prescribed as being exempt from the requirements of those subsections.
7
If the scheme provides for the payment out of any sum representing the surrender value of a policy of insurance taken out for the purposes of the scheme, it must make provision so that there may be no payment out in relation to guaranteed minimum pensions except in such circumstances as may be prescribed.
F134I124 Sufficiency of resources.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Discretionary requirements
I125C42C39C17C56C57 Power for Board to impose conditions as to investments and resources.
F1351
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
F86...
F86A salary related contracted-out scheme must, in relation to any earner’s service before the principal appointed day, comply with any requirements prescribed for the purpose of securing that—
a
the F303Inland Revenue are kept informed about any matters affecting the security of the minimum pensions guaranteed under the scheme, and
b
the resources of the scheme are brought to and are maintained at a level satisfactory to the F304Inland Revenue
F1363
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Requirements for certification of occupational and personal money purchase schemes
I126 Persons who may establish scheme.
The Secretary of State may prescribe descriptions of persons by whom or bodies by which the scheme may be established and, if he does so, the scheme may only be established by a person or body of a prescribed description.
I127 Identification and valuation of protected rights.
1
Where the rules of the scheme make such provision as is mentioned in section 10(2) or (3), they must also make provision for the identification of the protected rights.
2
The value of such protected rights as are mentioned in section 10(2) or (3) must be calculated in a manner no less favourable than that in which the value of any other rights of the member to money purchase benefits under the scheme are calculated.
3
Subject to subsection (2), the value of protected rights must be calculated and verified in such manner as may be prescribed.
I1C6628C42C39C17 Ways of giving effect to protected rights.
1
The rules of the scheme must provide for effect to be given to the protected rights of a member—
a
in any case where subsection (3) so requires, by the purchase of such an annuity as is mentioned in that subsection, and
F488aa
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
in any other case, in such of the ways F489provided for by the following subsections as the rules may specify,
and they must not provide for any part of a member’s protected rights to be discharged otherwise than in accordance with those subsections.
1A
F490In the case of a personal pension scheme, where the member so elects, effect shall be given to his protected rights—
a
during the interim period, by the making of payments under an interim arrangement which—
i
complies with section 28A,
ii
satisfies such conditions as may be prescribed, and
b
at the end of the interim period, in such of the ways permitted by the following subsections as the rules of the scheme may specify.
F490Where the scheme is a personal pension scheme which provides for the member to elect to receive payments in accordance with this subsection, and the member so elects, effect shall be given to his protected rights during the interim period by the making of payments under an interim arrangement which—
a
complies with section 28A, and
b
satisfies such conditions as may be prescribed;
and in such a case subsections (2) to (4) accordingly apply as regards giving effect to his protected rights as from the end of that period.
2
Effect may be given to protected rights—
a
by the provision by the scheme of a pension which—
i
complies with the pension requirements (within the meaning of section 29(1)), and
ii
satisfies such conditions as may be prescribed; or
b
in such circumstances and subject to such conditions as may be prescribed, by the making of a transfer payment—
i
in the case of an occupational pension scheme, to another occupational pension scheme F446, to a personal pension scheme or to an overseas arrangement, and
ii
in the case of a personal pension scheme, to another personal pension scheme F447, to an occupational pension scheme or to an overseas arrangement,
where the scheme to which the payment is made satisfies such requirements as may be prescribed.
3
Subject to subsections (5) and (7), if—
a
the rules of the scheme do not provide for a pension; or
b
the member F25or, where section 28A(2) applies, the member’s widow or widower so elects,
then, except to the extent that effect is given to protected rights in accordance with subsection F491(1A)F450, (4) or (4A), effect shall be given to them by the purchase by the scheme of an annuity which—
i
complies with the annuity requirements (within the meaning of section 29(3)), and
ii
satisfies such conditions as may be prescribed.
4
Effect may be given to protected rights by the provision of a lump sum if—
a
the lump sum is payable on a date which is—
i
F26
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F26
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ii
in the case of a personal pension scheme, where the member has elected to receive payments under an interim arrangement, the date by reference to which the member elects to terminate that arrangement, and otherwise such date as has been agreed by him and is not earlier than his 60th birthday nor later than his 75th birthday.
b
the annual rate of a pension under subsection (2) or an annuity under subsection (3) giving effect to the protected rights and commencing on the date on which the lump sum is payable would not exceed the prescribed amount;
c
the circumstances are such as may be prescribed; and
F448d
the amount of the lump sum is equal to the value on that date of the protected rights to which effect is being given.
F4494A
Subject to subsection (4B), in the case of an occupational pension scheme, effect may be given to protected rights by the provision of a lump sum if—
a
the trustees or managers of the scheme are satisfied that the member is terminally ill and likely to die within the period of twelve months beginning with the date on which the lump sum becomes payable; and
b
the amount of the lump sum is equal to the value on that date of the protected rights to which effect is being given.
4B
The value of the protected rights to which effect may be given under subsection (4A) in a case in which the member is a married person on the date on which the lump sum becomes payable shall not exceed one half of the value on that date of all the member’s protected rights.
5
6
No transaction is to be taken to give effect to protected rights unless it falls within this section.
F1377
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F288
In this section and sections 28A, 28B and 29—
“the interim period” means the period beginning with the starting date in relation to the member in question and ending with the termination date;
“the starting date” means the date, which must not be earlier than the member’s 60th birthday, by reference to which the member elects to begin to receive payments under the interim arrangement;
“the termination date” means the date by reference to which the member (or, where section 28A(2) applies, the member’s widow or widower) elects to terminate the interim arrangement, and that date must be not later than—
- i
the member’s 75th birthday, or
- ii
where section 28A(2) applies, the earlier of the member’s widow or widower’s 75th birthday and the 75th anniversary of the member’s birth.
- i
F349
This section is subject to section 32A
28AF29Requirements for interim arrangements
1
An interim arrangement must provide for payments to be made to the member, and, where subsection (2) applies, to the member’s widow or widower, throughout the interim period, at intervals not exceeding twelve months.
2
This subsection applies where the member dies during the interim period and is survived by a widow or widower who at the date of the member’s death has not yet attained the age of 75 years.
3
The aggregate amount of payments made to a person under an interim arrangement in each successive period of twelve months must not be—
a
greater than the annual amount of the annuity which would have been purchasable by him on the relevant reference date, or
b
less than the prescribed percentage of that amount.
4
The percentage prescribed under subsection (3)(b) may be zero.
5
For the purposes of this section—
a
the annual amount of the annuity which would have been purchasable by a person on any date shall be calculated in the prescribed manner by reference to—
i
the value on that date, determined by or on behalf of the trustees or managers of the scheme, of the person’s protected rights, and
ii
the current published tables of rates of annuities prepared in the prescribed manner by the Government Actuary for the purposes of this section, and
b
the relevant reference date is—
i
in relation to payments made to the member during the three years beginning with the member’s starting date, that date, and in relation to such payments made during each succeeding period of three years, the first day of the period of three years in question, or
ii
where subsection (2) applies, in relation to payments made to the member’s widow or widower during the three years beginning with the date of the member’s death, that date, and in relation to such payments made during each succeeding period of three years, the first day of the period of three years in question.
28BC56C57Information about interim arrangements
1
The trustees or managers of a personal pension scheme must, if required to do so by the F305Inland Revenue, produce any document relevant to—
a
the level of payments made under any interim arrangement, or
b
the value of protected rights to which such an arrangement gives effect,
or otherwise connected with the making of payments under such an arrangement.
2
In this section, “document” includes information recorded in any form, and the reference to the production of a document, in relation to information recorded otherwise than in legible form, is a reference to producing a copy of the information in legible form.
I129C42C39C17 The pension and annuity requirements.
1
For the purposes of section 28 a pension complies with the pension requirements if—
a
F30...
F30
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F30
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F30
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F30in the case of an occupational pension scheme it commences on a date—
i
not earlier than the member’s 60th birthday, and
ii
not later than his 65th birthday,
or on such later date as has been agreed by him, and continues until the date of his death, or
aa
in the case of a personal pension scheme—
i
where the member has elected under section 28(1A) to receive payments under an interim arrangement, it commences on the termination date, and continues until the date of the member’s death or, where section 28A(2) applies, until the death of the member’s widow or widower, or
ii
otherwise, it commences on such a date as has been agreed by the member and is not earlier than his 60th birthday nor later than his 75th birthday, and continues until the date of his death;
b
in a case where the member dies while it is payable to him and is survived by a widow or widower—
i
it is payable to the widow or widower in prescribed circumstances and for the prescribed period at an annual rate which at any given time is one-half of the rate at which it would have been payable to the member if the member had been living at that time; or
2
As respects the period of 5 years beginning with the commencement of the pension referred to in subsection (1), that subsection shall have effect in relation to that pension as if the words “at least” were inserted immediately before the words “one-half” in paragraph (b)(i).
3
For the purposes of section 28 an annuity complies with the annuity requirements if—
a
it satisfies the requirements mentioned in subsections (1) and (2) (taking the references in those subsections to pensions as references to annuities); and
b
it is provided by an F468insurer which—
i
satisfies prescribed conditions;
ii
complies with such conditions as may be prescribed as to the calculation of annuities provided by it and as to the description of persons by or for whom they may be purchased; and
iii
subject to subsection (4), has been chosen by the member F31or, where section 28A(2) applies, the member’s widow or widower.
4
A member F32(or a member’s widow or widower) is only to be taken to have chosen an F469insurer if he gives notice of his choice to the trustees or managers of the scheme within the prescribed period and in such manner and form as may be prescribed, and with any such supporting evidence as may be prescribed; and, if he does not do so, the trustees or managers may themselves choose the F469insurer instead.
I130C56C57 Securing of liability for protected rights.
1
The F306Inland Revenue must be satisfied that the scheme complies with any such requirements as may be prescribed for meeting the whole or a prescribed part of any liability in respect of protected rights under the scheme which the scheme is unable to meet from its own resources—
a
by reason of the commission by any person of a criminal offence;
b
in such other circumstances as may be prescribed.
2
Subsection (1) does not apply to a public service pension scheme.
I131C42C39C17C56C57 Investment and resources of schemes.
1
F88The scheme must comply with such requirements as may be prescribed as regards the investment of its resources and with any direction of the Board—
a
that no part, or no more than a specified proportion, of the scheme’s resources shall be invested in investments of a specified class or description;
b
that the whole or a specified proportion of investments of a specified class or description forming part of the scheme’s resources when the direction is given shall be realised before the end of a specified period.
2
The scheme must comply with such requirements as may be prescribed as regards the part—
a
of any payment that is made to the scheme by or on behalf of a member of the scheme;
b
of any income or capital gain arising from the investment of such a payment; or
c
of the value of rights under the scheme,
that may be used—
i
to defray the administrative expenses of the scheme;
ii
to pay commission; or
iii
in any other way which does not result in the provision of benefits for or in respect of members.
3
Subject to subsection (4)—
a
b
in the case of a personal pension scheme, all minimum contributions,
which are paid to a scheme in respect of one of its members must be applied so as to provide money purchase benefits for or in respect of that member, except so far as they are used—
i
to defray the administrative expenses of the scheme; or
ii
to pay commission.
4
If regulations are made under subsection (2), the payments mentioned in paragraph (a) of subsection (3) and the contributions mentioned in paragraph (b) of that subsection may be used in any way which the regulations permit, but not in any way not so permitted except to provide money purchase benefits for or in respect of the member.
F905
Any minimum contributions required by reason of this section to be applied so as to provide money purchase benefits for or in respect of a member of a scheme must be so applied in the prescribed manner and within the prescribed period
I132 Suspension or forfeiture.
Except in such circumstances as may be prescribed, the rules of the scheme must not permit the suspension or forfeiture of a member’s protected rights or of payments giving effect to them.
32AF33Discharge of protected rights on winding up: insurance policies
1
Where an occupational pension scheme is being wound up and such conditions as may be prescribed are satisfied, effect may be given to the protected rights of a member of the scheme (in spite of section 28) by—
a
taking out an appropriate policy of insurance, or a number of such policies, under which the member is the beneficiary, or
b
assuring the benefits of a policy of insurance, or a number of such policies, to the member, where the policy assured is an appropriate policy.
2
A policy of insurance is appropriate for the purposes of this section if—
a
the F470insurer with which it is or was taken out or entered into—
i
ii
satisfies, or at that time satisfied, prescribed requirements, and
b
it may not be assigned or surrendered except on conditions which satisfy such requirements as may be prescribed, and
c
it contains or is endorsed with terms whose effect is that the amount secured by it may not be commuted except on conditions which satisfy such requirements as may be prescribed, and
d
it satisfies such other requirements as may be prescribed
I133 Tax requirements to prevail over certification requirements.
Nothing in sections 26 to 32 shall be taken to prejudice any requirements with which a scheme must comply if it is to qualify for tax-exemption or tax-approval.
33AC56C57F112Appropriate schemes: “Blowing the whistle”
1
If any person acting as an auditor or actuary of an appropriate scheme has reasonable cause to believe that—
a
any requirement which, in the case of the scheme, is required by section 9(5)(a) to be satisfied is not satisfied, and
b
that person must immediately give a written report of the matter to the F308Inland Revenue.
2
No duty to which a person acting as auditor or actuary of an appropriate scheme is subject shall be regarded as contravened merely because of any information or opinion contained in a written report under this section.
Cancellation, variation, surrender and refusal of certificates
I1C56C5734C42C39C17C56C57 Cancellation, variation, surrender and refusal of certificates.
1
Regulations shall provide for the cancellation, variation or surrender of any contracting-out certificate or appropriate scheme certificate, or the issue of an amended certificate—
C25a
i
on any change of circumstances affecting the treatment of an employment as contracted-out employment, or
ii
where the scheme is a salary related contracted-out scheme and the certificate was issued on or after the principal appointed day, if any employer of persons in the description or category of employment to which the scheme in question relates, or the actuary of the scheme, fails to provide the F310Inland Revenue, at prescribed intervals, with such documents as may be prescribed for the purpose of verifying that the conditions of section 9(2B) are satisfied
b
in the case of an appropriate scheme certificate, on any relevant change of circumstances.
C262
F82Regulations may enable the F310Inland Revenue to cancel or vary a contracting-out certificate where—
a
F311they have reason to suppose that any employment to which it relates ought not to be treated as contracted-out employment in accordance with the certificate; and
b
the employer does not show that it ought to be so treated.
3
Where—
a
by or by virtue of any provision of this Part the contracting-out of a scheme in relation to an employment depends on the satisfaction of a particular condition, or
b
by or by virtue of any provision of sections 26 to 32 a scheme’s being an appropriate scheme depends on the satisfaction of a particular condition,
the continued contracting-out of the scheme or, as the case may be, the scheme’s continuing to be an appropriate scheme shall be dependent on continued satisfaction of the condition; and if the condition ceases to be satisfied, that shall be a ground (without prejudice to any other) for the cancellation or variation of the contracting-out or appropriate scheme certificate.
4
A contracting-out certificate in respect of any employment may be withheld or cancelled by the F310Inland Revenue if F312they consider that there are circumstances which make it inexpedient that the employment should be or, as the case may be, continue to be, contracted-out employment by reference to the scheme, notwithstanding that the relevant scheme is one that F312they would otherwise treat as proper to be contracted-out in relation to all earners in that employment.
5
An appropriate scheme certificate may be withheld or cancelled by the F310Inland Revenue if F313they consider that there are circumstances which make it inexpedient that the scheme should be or continue to be an appropriate scheme, notwithstanding that F313they would otherwise issue such a certificate or not cancel such a certificate.
F926
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
F93...
F93
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F93
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F93Without prejudice to the previous provisions of this section, failure of a scheme to comply with any requirements prescribed by virtue of section 25(2) shall be a ground on which the F310Secretary of StateF310Inland Revenue may, in respect of any employment to which the scheme relates, cancel a contracting-out certificate
C278
Except in prescribed circumstances, no cancellation, variation or surrender of a contracting-out certificate or appropriate scheme certificate shall have effect from a date earlier than that on which the cancellation, variation or surrender is made.
I1C34C42C39C1735C42C39C17 Surrender and cancellation of contracting-out certificates: issue of further certificates.
1
This section applies in any case where—
a
a contracting-out certificate (“the first certificate”) has been surrendered by an employer or cancelled by the Board; and
b
at any time before the end of the period of 12 months beginning with the date of the surrender or cancellation, that or any connected employer makes an election under section 11 in respect of any employment which was specified by virtue of section 7(2)(a) in the first certificate, with a view to the issue of a further contracting-out certificate.
2
This section applies whether or not the scheme specified in the first certificate in relation to the employment concerned is the same as the scheme which would be specified in the further certificate if it were issued.
3
The Board shall not give effect to the election referred to in subsection (1) by issuing a further certificate unless they consider that, in all the circumstances of the case, it would be reasonable to do so.
4
Regulations may make such supplemental provision in relation to cases falling within this section as the Secretary of State considers necessary or expedient.
5
For the purposes of subsection (1)—
a
an employment (“the second employment”) in respect of which an election of the kind referred to in subsection (1)(b) has been made; and
b
an employment (“the first employment”) which was specified by virtue of section 7(2)(a) in the first certificate,
shall be treated as one employment if, in the opinion of the Board—
i
they are substantially the same, however described; or
ii
the first employment falls wholly or partly within the description of the second employment or the second employment falls wholly or partly within the description of the first employment.
6
Regulations shall prescribe the cases in which employers are to be treated as connected for the purposes of this section.
I1C34C42C39C1736C42C39C17 Surrender and cancellation of contracting-out certificates: cancellation of further certificates.
1
This section applies in any case where—
a
a contracting-out certificate (“the first certificate”) has been surrendered by an employer or cancelled by the Board;
b
a further contracting-out certificate (“the further certificate”) has been issued, after the surrender or cancellation of the first certificate but before the end of the period of 12 months beginning with the date of the surrender or cancellation, in respect of any employment which was specified by virtue of section 7(2)(a) in the first certificate; and
c
the Board have formed the opinion that had they been aware of all the circumstances of the case at the time when the further certificate was issued they would have been prevented by section 35(3) from issuing it.
2
This section applies whether or not the scheme specified in the first certificate in relation to the employment concerned is the same as the scheme specified in the further certificate.
3
The Board may, before the end of the period of 12 months beginning with the date on which the further certificate was issued, cancel that certificate.
4
Where a contracting-out certificate is cancelled under subsection (3) the provisions of this Act and of any regulations and orders made under it shall have effect as if the certificate had never been issued.
5
Regulations may make such supplemental provision in relation to cases falling within this section as the Secretary of State considers necessary or expedient.
6
Without prejudice to subsection (5), regulations may make provision, in relation to any case in which the Board have cancelled a contracting-out certificate under subsection (3), preventing the recovery by the employer concerned (whether by deduction from emoluments or otherwise) of such arrears which he is required to pay to the Secretary of State in respect of an earner’s liability under section 6(3) of the M7Social Security Contributions and Benefits Act 1992 as may be prescribed.
7
For the purposes of subsection (1)—
a
an employment (“the second employment”) in respect of which a further contracting-out certificate of the kind referred to in subsection (1)(b) has been issued; and
b
an employment (“the first employment”) which was specified by virtue of section 7(2)(a) in the first certificate,
shall be treated as one employment if, in the opinion of the Board—
i
they are substantially the same, however described; or
ii
the first employment falls wholly or partly within the description of the second employment or the second employment falls wholly or partly within the description of the first employment.
Alteration of scheme rules after certification
I1C42C39C1737C42C39C17 Alteration of rules of contracted-out schemes.
F941
Subject to subsection (2), where a contracting-out certificate has been issued, no alteration of the rules of the relevant scheme shall be made so as to affect any of the matters dealt with in this Part (other than sections 18, 19 and 43 to 45, and sections 26 to 33 so far as they apply to personal pension schemes) or Chapter III of Part IV or Chapter II of Part V without the consent of the Board.
C542
Subsection (1) does not apply—
a
b
to an alteration of a prescribed description.
3
Subject to subsection (4), any alteration to which subsection (1) applies shall be void if it is made without the consent of the Board.
4
A consent given by the Board for the purposes of this section shall, if and to the extent that the Board so direct, operate so as to validate with retrospective effect any alteration of the rules which would otherwise be void under this section.
5
This section shall continue in force in relation to a scheme after it has ceased to be contracted-out so long as—
a
any person is entitled to receive, or has accrued rights to, a guaranteed minimum pension under the scheme, or
b
any person has protected rights under it or is entitled to any benefit giving effect to protected rights under it.
6
The reference in subsection (5) to a person entitled to receive a guaranteed minimum pension includes a reference to a person so entitled by virtue of being the widower of an earner only in such cases as may be prescribed.
F941
Except in prescribed circumstances, the rules of a contracted-out scheme cannot be altered unless the alteration is of a prescribed description.
2
Regulations made by virtue of subsection (1) may operate so as to validate with retrospective effect any alteration of the rules which would otherwise be void under this section.
3
References in this section to a contracted-out scheme include a scheme which has ceased to be contracted-out so long as any person is entitled to receive, or has accrued rights to, any benefits under the scheme attributable to a period when the scheme was contracted-out.
4
The reference in subsection (3) to a person entitled to receive benefits under a scheme includes a person so entitled by virtue of being the widower of an earner only in such cases as may be prescribed.
I138 Alteration of rules of appropriate schemes.
1
Where an appropriate scheme certificate has been issued, no alteration of the rules of the relevant scheme shall be made so as—
a
to affect any of the matters dealt with in sections 26 to 33; or
b
to cause the scheme to take a different permitted form from that previously taken,
F138...
F138
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
Subsection (1) does not apply to an alteration of a prescribed description.
3
Subject to subsection (4), any alteration to which subsection (1) applies shall be voidF139....
4
F140Regulations made by virtue of subsection (2) may operate so as to validate with retrospective effect any alteration of the rules which would otherwise be void under this section.
5
This section shall continue in force in relation to a scheme after it has ceased to be an appropriate scheme so long as any person has protected rights under the scheme.
6
The reference in subsection (1)(b) to a permitted form is to one of the following forms, namely—
a
an arrangement for the issue of insurance policies or annuity contracts;
b
c
an arrangement for the investment of contributions in an interest-bearing account (including shares in or deposits with a building society (within the meaning of the M12Building Societies Act 1986));
F474d
an open-ended investment company within the meaning of the Open-Ended Investment Companies Regulations 2001.
F4736A
“Authorised unit trust scheme” has the meaning given in Part 17 of the Financial Services and Markets Act 2000 and includes any scheme which is, as a result of an order made under section 426 of that Act making transitional provisions, treated as falling within that meaning.
F1417
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
General regulations as to administration of Part III
I139 General power to make regulations.
Schedule 2 shall have effect for enabling regulations to be made in relation to the operation and administration of this Part, and Part I of that Schedule has effect as respects occupational pension schemes, and Part II of that Schedule as respects personal pension schemes.
C42C39C17C56C57Chapter II Reduction in state scheme contributions and Social Security benefits for members of certified schemes
Preliminary
I140C42C39C17 Scope of Chapter II.
This Chapter has effect for the purpose—
a
of reducing the rates at which certain national insurance contributions are payable by or in respect of earners whose employment is contracted-out by reference to contracted-out occupational pension schemes;
b
c
of making provision concerning the payment of certain social security benefits payable in respect of members and former members of such schemes.
F59Reduced rates of state scheme Class 1 contributionsF59Reduced rates of contributions for members of salary related contracted-out schemes
S. 41(1)(1A) substituted for s. 41(1) (13.3.1996 for specified purposes, 6.4.1996 for specified purposes, 6.4.1997 in so far as not already in force) by Pensions Act 1995 (c. 26), ss. 137(2), 180(1); S.I. 1996/778, art. 2(1)(5)(a), Sch. Pts. 1, 5; S.I. 1997/664, art. 2(3), Sch. Pt. 2
I141C42C39C17F59Reduced rates of Class 1 contributions
F3561
Subsections (1A) to F376(1E) apply where—
a
the earnings paid to or for the benefit of an earner in any tax week are in respect of an employment which is contracted-out employment at the time of the payment, and
b
the earner’s service in the employment is service which qualifies him for a pension provided by a salary related contracted-out scheme;
and in subsections (1A) and (1B) “the relevant part”, in relation to those earnings, means so much of those earnings as exceeds the current lower earnings limit but not the current upper earnings limit for that week (or the prescribed equivalents if the earner is paid otherwise than weekly).
1A
F374The amount of any primary Class 1 contribution in respect of the earnings shall be reduced by an amount equal to 1.6 per cent of the relevant part of the earnings (“Amount R1”).
1B
The amount of any secondary Class 1 contribution in respect of the earnings shall be reduced by an amount equal to F5103.5 per cent of the relevant part of the earnings (“Amount R2”).
1C
The aggregate of Amounts R1 and R2 shall be set off—
a
first against the aggregate amount which the secondary contributor is liable to pay in respect of the contributions mentioned in subsections (1A) and (1B); and
b
then (as to any balance) against any amount which the secondary contributor is liable to pay in respect of any primary or secondary Class 1 contribution in respect of earnings—
i
paid to or for the benefit of any other employed earner (whether in contracted-out employment or not), and
ii
in relation to which the secondary contributor is such a contributor;
and in this subsection any reference to a liability to pay an amount in respect of a primary Class 1 contribution is a reference to such a liability under paragraph 3 of Schedule 1 to the Social Security Contributions and Benefits Act 1992.
1D
If—
a
any balance remains, and
b
the secondary contributor makes an application for the purpose to the Inland Revenue,
the Inland Revenue shall, in such manner and at such time (or within such period) as may be prescribed, pay to the secondary contributor an amount equal to the remaining balance.
But regulations may make provision for the adjustment of an amount that would otherwise be payable under this subsection so as to avoid the payment of trivial or fractional amounts.
1E
If the Inland Revenue pay any amount under subsection (1D) which they are not required to pay, they may recover that amount from the secondary contributor in such manner and at such time (or within such period) as may be prescribed.
2
Where—
a
an earner has ceased to be employed in an employment; and
b
earnings are paid to him or for his benefit within the period of 6 weeks, or such other period as may be prescribed, from the day on which he so ceased,
that employment shall be treated for the purposes of subsection (1) as contracted-out employment at the time when the earnings are paid if it was contracted-out employment in relation to the earner when he was last employed in it.
3
This section shall not affect the amount of any primary Class 1 contribution which is payable at a reduced rate by virtue of regulations under section 19(4) of the M13Social Security Contributions and Benefits Act 1992 (reduced rates for married women and widows).
I142C42C39C17 Review and alteration of rates of contributions applicable under s. 41.
1
The Secretary of State may from time to time, and shall when required by subsection (2), lay before each House of Parliament—
C15a
F60a report by the Government Actuary or the Deputy Government Actuary on—
i
the percentages for the time being applying under section F38741(1A) and (1B), and
ii
any changes since the preparation of the last report under this paragraph in the factors in his opinion affecting the cost of providing benefits of an actuarial value equivalent to that of the benefits F506(or parts of benefits) which, in accordance with section 48A below and Schedule 4A to the Social Security Contributions and Benefits Act 1992, are foregone by or in respect of members of salary related contracted-out schemes
b
a report by the Secretary of State stating whether he considers that, in view of the report of the Government Actuary or the Deputy Government Actuary, there should be an alteration in either or both of those percentages and, if so, what alteration is in his opinion required.
2
The Secretary of State shall lay such reports at intervals of not more than five years.
3
If in a report under subsection (1)(b) the Secretary of State states that he considers that there should be an alteration in either or both of the percentages mentioned in section F38841(1A) and (1B), he shall prepare and lay before each House of Parliament with the report the draft of an order making that alteration; and if the draft is approved by resolution of each House the Secretary of State shall make the order in the form of the draft.
4
An order under subsection (3) shall have effect from the beginning of such tax year as may be specified in the order, but not a tax year earlier than the second after that in which the order is made.
5
No alteration of those percentages shall introduce any distinction on grounds of age or sex.
6
A draft of an order making alterations in either or both of those percentages may contain consequential provisions altering any percentage for the time being specified in paragraph 2(3) of Schedule 4 as that percentage applies in relation to earnings paid or payable on or after the day as from which the order is to have effect.
F61Reduced rates of contributions, and rebates, for members of money purchase contracted-out schemes
Ss. 42A, 42B and cross-heading inserted (13.3.1996 for specified purposes, 6.4.1996 for specified purposes, 6.4.1997 in so far as not already in force) by Pensions Act 1995 (c. 26), ss. 137(5), 180(1); S.I. 1996/778, art. 2(1)(5)(a), Sch. Pts. I, V; S.I. 1997/664, art. 2(3), Sch. Pt. II
F357C42C39C1742AC42C39C17C56C57Reduced rates of Class 1 contributions, and rebates
1
Subsections (2) to F377(2D) and (3) apply where—
a
the earnings paid to or for the benefit of an earner in any tax week are in respect of an employment which is contracted-out employment at the time of the payment, and
b
the earner’s service in the employment is service which qualifies him for a pension provided by a money purchase contracted-out scheme;
and in subsections (2) and (2A) “the relevant part”, in relation to those earnings, means so much of those earnings as exceeds the current lower earnings limit but not the current upper earnings limit for that week (or the prescribed equivalents if the earner is paid otherwise than weekly).
2
F375The amount of any primary Class 1 contribution in respect of the earnings shall be reduced by an amount equal to the appropriate flat-rate percentage of the relevant part of the earnings (“Amount R1”).
2A
The amount of any secondary Class 1 contribution in respect of the earnings shall be reduced by an amount equal to the appropriate flat-rate percentage of the relevant part of the earnings (“Amount R2”).
2B
The aggregate of Amounts R1 and R2 shall be set off—
a
first against the aggregate amount which the secondary contributor is liable to pay in respect of the contributions mentioned in subsections (2) and (2A); and
b
then (as to any balance) against any amount which the secondary contributor is liable to pay in respect of a primary or secondary Class 1 contribution in respect of earnings—
i
paid to or for the benefit of any other employed earner (whether in contracted-out employment or not), and
ii
in relation to which the secondary contributor is such a contributor;
and in this subsection any reference to a liability to pay an amount in respect of a primary Class 1 contribution is a reference to such a liability under paragraph 3 of Schedule 1 to the Social Security Contributions and Benefits Act 1992.
2C
If—
a
any balance remains, and
b
the secondary contributor makes an application for the purpose to the Inland Revenue,
the Inland Revenue shall, in such manner and at such time (or within such period) as may be prescribed, pay to the secondary contributor an amount equal to the remaining balance.
But regulations may make provision for the adjustment of an amount that would otherwise be payable under this subsection so as to avoid the payment of trivial or fractional amounts.
2D
If the Inland Revenue pay any amount under subsection (2C) which they are not required to pay, they may recover that amount from the secondary contributor in such manner and at such time (or within such period) as may be prescribed.
3
The F314Inland Revenue shall except in prescribed circumstances or in respect of prescribed periods pay in respect of that earner and that tax week to the trustees or managers of the scheme or, in prescribed circumstances, to a prescribed person the amount by which—
a
the appropriate age-related percentage of that part of those earnings,
exceeds
b
the appropriate flat-rate percentage of that part of those earnings.
4
Regulations may make provision—
a
as to the manner in which and time at which or period within which payments under subsection (3) are to be made,
b
for the adjustment of the amount which would otherwise be payable under that subsection so as to avoid the payment of trivial or fractional amounts,
c
for earnings to be calculated or estimated in such manner and on such basis as may be prescribed for the purpose of determining whether any, and if so what, payments under subsection (3) are to be made.
5
6
Where—
a
an earner has ceased to be employed in an employment, and
b
earnings are paid to him or for his benefit within the period of six weeks, or such other period as may be prescribed, from the day on which he so ceased,
that employment shall be treated for the purposes of this section as contracted-out employment at the time when the earnings are paid if it was contracted-out employment in relation to the earner when he was last employed in it.
7
Subsection (3) of section 41 applies for the purposes of this section as it applies for the purposes of that.
C42C39C1742BC42C39C17Determination and alteration of rates of contributions, and rebates, applicable under section 42A
1
The Secretary of State shall at intervals of not more than five years lay before each House of Parliament—
a
a report by the Government Actuary or the Deputy Government Actuary on the percentages which, in his opinion, are required to be specified in an order under this section so as to reflect the cost of providing benefits of an actuarial value equivalent to that of the benefits F507(or parts of benefits) which, in accordance with section 48A below and Schedule 4A to the Social Security Contributions and Benefits Act 1992, are foregone by or in respect of members of money purchase contracted-out schemes,
b
a report by the Secretary of State stating what, in view of the report under paragraph (a), he considers those percentages should be, and
c
a draft of an order under subsection (2).
C642
An order under this subsection shall have effect in relation to a period of tax years (not exceeding five) and may—
a
specify different percentages for primary and secondary Class 1 contributions, and
b
for each of the tax years for which it has effect—
i
specify a percentage in respect of all earners which is “the appropriate flat-rate percentage” for the purposes of section 42A, and
ii
specify different percentages (not being less than the percentage specified by virtue of sub-paragraph (i)) in respect of earners by reference to their ages on the last day of the preceding year (the percentage for each group of earners being “the appropriate age-related percentage” in respect of earners in that group for the purposes of section 42A).
3
If the draft of an order under subsection (2) is approved by resolution of each House of Parliament, the Secretary of State shall make the order in the form of the draft.
4
An order under subsection (2) shall have effect from the beginning of such tax year as may be specified in the order, not being a tax year earlier than the second after that in which the order is made.
5
Subsection (2) is without prejudice to the generality of section 182
Minimum contributions: members of appropriate personal pension schemes
I1C56C5743C56C57 Payment of minimum contributions to personal pension schemes.
1
Subject to the following provisions of this Part, the F317Inland Revenue shall, except in such circumstances F142or in respect of such periods as may be prescribed, pay minimum contributions in respect of an employed earner for any period during which the earner—
a
is over the age of 16 but has not attained pensionable age;
b
is not a married woman or widow who has made an election which is still operative that her liability in respect of primary Class 1 contributions shall be a liability to contribute at a reduced rate; and
c
is a member of an appropriate personal pension scheme which is for the time being the earner’s chosen scheme.
2
Subject to subsection (3), minimum contributions in respect of an earner shall be paid to the trustees or managers of the earner’s chosen scheme.
3
In such circumstances as may be prescribed minimum contributions shall be paid to a prescribed person.
4
Where the condition mentioned in subsection (1)(a) or (c) ceases to be satisfied in the case of an earner in respect of whom the F317Inland RevenueF318are required to pay minimum contributions, the duty of the F317Inland Revenue to pay them shall cease as from a date determined in accordance with regulations.
5
If the F317Inland RevenueF319pay an amount by way of minimum contributions which F320theyF319are not required to pay, F320they may recover it—
a
from the person to whom F320they paid it, or
b
from any person in respect of whom F320they paid it.
6
If the F317Inland RevenueF321pay in respect of an earner an amount by way of minimum contributions which F322theyF321are required to pay, but F321do not pay it to the trustees or managers of the earner’s chosen scheme, F322they may recover it from the person to whom F322they paid it or from the earner.
I1C56C5744C56C57 Earner’s chosen scheme.
1
Where an earner and the trustees or managers of an appropriate personal pension scheme have jointly given notice to the F323Inland Revenue, in such manner and form and with such supporting evidence as may be prescribed—
a
that the earner is, or intends to become, a member of the scheme and wishes minimum contributions in respect of him to be paid to the scheme under section 43;
b
that the trustees or managers have agreed to accept him as a member of the scheme and to receive such minimum contributions in respect of him,
F143then, unless the F323Inland RevenueF324reject the notice on either or both of the grounds mentioned in subsection (1A) that scheme is the earner’s chosen scheme for the purposes of section 43 as from a date determined in accordance with regulations and specified in the notice, unless at that date some other appropriate scheme is the earner’s chosen scheme for those purposes.
F1441A
a
that section 31(5) is not being complied with in respect of any members of the scheme,
b
that, having regard to any other provisions of sections 26 to 32 and 43 to 45, it is inexpedient to allow the scheme to be the chosen scheme of any further earners
2
3
When a notice under subsection (2) is given, the scheme ceases to be the earner’s chosen scheme as from a date determined in accordance with regulations and specified in the notice.
I145C56C57 Amount of minimum contributions.
F1451
In relation to any tax week falling within a period for which the F326Inland Revenue are required to pay minimum contributions in respect of an earner, the amount of those contributions shall be an amount equal to the appropriate age-related percentage of so much of the earnings paid in that week (other than earnings in respect of contracted-out employment) as exceeds the current lower earnings limit but not the current upper earnings limit for that week (or the prescribed equivalents if he is paid otherwise than weekly)
F1462
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
Regulations may make provision—
a
for earnings to be calculated or estimated in such manner and on such basis as may be prescribed for the purpose of determining whether any, and if so what, minimum contributions are payable in respect of them;
b
for the adjustment of the amount which would otherwise be payable by way of minimum contributions so as to avoid the payment of trivial or fractional amounts;
c
for the intervals at which, for the purposes of minimum contributions, payments of earnings are to be treated as made;
F148d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
e
for this section to have effect in prescribed cases as if for any reference to a tax week there were substituted a reference to a prescribed periodF147...;
f
as to the manner in which and time at which or period within which minimum contributions are to be made.
C42C39C1745AC42C39C17F62Determination and alteration of rates of minimum contributions under section 45
1
The Secretary of State shall at intervals of not more than five years lay before each House of Parliament—
a
a report by the Government Actuary or the Deputy Government Actuary on the percentages which, in his opinion, are required to be specified in an order under this section so as to reflect the cost of providing benefits of an actuarial value equivalent to that of the benefits F508(or parts of benefits) which, in accordance with section 48A below and Schedule 4A to the Social Security Contributions and Benefits Act 1992, are foregone by or in respect of members of appropriate personal pension schemes,
b
a report by the Secretary of State stating what, in view of the report under paragraph (a), he considers those percentages should be, and
c
a draft of an order under subsection (2).
C652
An order under this subsection—
a
shall have effect in relation to a period of tax years (not exceeding five), and
b
may, for each of the tax years for which it has effect, specify different percentages in respect of earners by reference to their ages on the last day of the preceding year (the percentage for each group of earners being “the appropriate age-related percentage” in respect of earners in that group for the purposes of section 45).
3
If the draft of an order under subsection (2) is approved by resolution of each House of Parliament, the Secretary of State shall make the order in the form of the draft.
4
An order under subsection (2) shall have effect from the beginning of such tax year as may be specified in the order, not being a tax year earlier than the second after that in which the order is made.
5
Subsection (2) is without prejudice to the generality of section 182
C42C39C1745BC42C39C17C56C57F63Money purchase and personal pension schemes: verification of ages
1
Regulations may make provision for the manner in which an earner’s age is to be verified in determining the appropriate age-related percentages for the purposes of sections 42A and 45(1).
2
Information held by the Secretary of State F327or the Inland Revenue as to the age of any individual may, whether or not it was obtained in pursuance of regulations under subsection (1), be disclosed by the Secretary of State F327or the Inland Revenue—
a
to the trustees or managers of a money purchase contracted-out scheme or an appropriate personal pension scheme, and
b
to such other persons as may be prescribed,
in connection with the making of payments under section 42A(3) or the payment of minimum contributions.
Effect of entitlement to guaranteed minimum pensions on payment of social security benefits
I1C42C39C11C1746C42C39C17 Effect of entitlement to guaranteed minimum pensions on payment of social security benefits.
1
Where for any period a person is entitled both—
a
b
to one or more guaranteed minimum pensions,
the weekly rate of the benefit mentioned in paragraph (a) shall for that period be reduced by an amount equal—
i
F149to that part of its additional pension which is attributable to earnings factors for any tax years ending before the principal appointed day, or
ii
to the weekly rate of the pension mentioned in paragraph (b) (or, if there is more than one such pension, their aggregate weekly rates),
whichever is the less.
F32
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F43
Where for any period—
a
a person is entitled to one or more guaranteed minimum pensions; and
b
he is also entitled to long-term incapacity benefit under section 30A of the Social Security Contributions and Benefits Act 1992,
for that period an amount equal to the weekly rate or aggregate weekly rates of the guaranteed minimum pension or pensions shall be deducted from any increase payable under regulations under section 30B(7) of that Act and he shall be entitled to such an increase only if there is a balance after the deduction and, if there is such a balance, at a weekly rate equal to it.
4
Where for any period—
a
a person is entitled to one or more guaranteed minimum pensions;
b
he is also entitled to a Category A retirement pension under section 44 of the M14 Social Security Contributions and Benefits Act 1992; and
c
the weekly rate of his pension includes an additional pension such as is mentioned in section 44(3)(b) of that Act,
for that period section 47 of that Act shall have effect as if the following subsection were substituted for subsection (3)—
3
In subsection (2) above “the relevant amount” means an amount equal to the aggregate of—
a
the additional pension; and
b
the weekly rate or aggregate weekly rates of the guaranteed minimum pension or pensions,
reduced by the amount of any reduction in the weekly rate of the Category A retirement pension made by virtue of section 46(1) of the Pension Schemes Act 1993.
5
Where for any period—
a
a person is entitled to one or more guaranteed minimum pensions;
b
he is also entitled to a Category A retirement pension under section 44 of the M14Social Security Contributions and Benefits Act 1992; and
c
the weekly rate of his Category A retirement pension does not include an additional pension such as is mentioned in subsection (3)(b) of that section,
for that period the relevant amount shall be deducted from the amount that would otherwise be the increase under section 47(1) of that Act and the pensioner shall be entitled to an increase under that section only if there is a balance remaining after that deduction and, if there is such a balance, of an amount equal to it.
6
Where for any period—
a
a person is entitled to one or more guaranteed minimum pensions;
b
he is also entitled—
F5i
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ii
to a Category A retirement pension under section 44 of that Act; or
c
the weekly rate of the pension includes an additional pension such as is mentioned in section 44(3)(b) of that Act,
for that period paragraph 3 of Schedule 7 to that Act shall have effect as if the following sub-paragraph were substituted for sub-paragraph (3)—
3
In this paragraph “the relevant amount” means an amount equal to the aggregate of—
a
the additional pension; and
b
the weekly rate or aggregate weekly rates of the guaranteed minimum pension or pensions,
reduced by the amount of any reduction in the weekly rate of the pension made by virtue of section 46(1) of the Pension Schemes Act 1993.
7
Where for any period—
a
a person is entitled to one or more guaranteed minimum pensions;
b
he is also entitled to any of the pensions under the M14 Social Security Contributions and Benefits Act 1992 mentioned in subsection (6)(b); and
c
the weekly rate of the pension does not include an additional pension such as is mentioned in section 44(3)(b) of that Act,
for that period the relevant amount shall be deducted from the amount that would otherwise be the increase under paragraph 3 of Schedule 7 to that Act and the beneficiary shall be entitled to an increase only if there is a balance after that deduction and, if there is such a balance, only to an amount equal to it.
8
In this section “the relevant amount” means an amount equal to the weekly rate or aggregate weekly rates of the guaranteed minimum pension or pensions—
F6a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
in the case of subsection (5), reduced by the amount of any reduction in the weekly rate of the Category A retirement pension made by virtue of subsection (1);
and references in this section to the weekly rate of a guaranteed minimum pension are references to that rate without any increase under section 15(1).
F79
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I1C42C39C11C1747C42C39C17 Further provisions concerning entitlement to guaranteed minimum pensions for the purposes of s. 46.
1
The reference in section 46(1) to a person entitled to a guaranteed minimum pension shall be construed as including a reference to a person so entitled by virtue of being the widower of an earner F8...only if—
a
at the time of the earner’s death she and her husband had both attained pensionable age; or
b
he is also entitled to a Category A retirement pension by virtue of section 41(7) of the M15Social Security Contributions and Benefits Act 1992.
2
For the purposes of section 46 a person shall be treated as entitled to any guaranteed minimum pension to which he would have been entitled—
a
if its commencement had not been postponed, as mentioned in section 13(4); or
C35b
if there had not been made a transfer payment or transfer under regulations made by virtue of section 20 as a result of which—
i
he is no longer entitled to guaranteed minimum pensions under the scheme by which the transfer payment or transfer was made, and
ii
he has not become entitled to guaranteed minimum pensions under the scheme to which the transfer payment or transfer was made.
3
Where—
a
guaranteed minimum pensions provided for a member or the member’s widow or widower under a contracted-out scheme have been wholly or partly secured as mentioned in subsection (3) of section 19; and
b
either—
i
the transaction wholly or partly securing them was carried out before 1st January 1986 and discharged the trustees or managers of the scheme as mentioned in subsection (1) of that section; or
ii
it was carried out on or after that date without any of the requirements specified in subsection (5)(a) to (c) of that section being satisfied in relation to it and the scheme has been wound up; and
c
any company with which any relevant policy of insurance or annuity contract was taken out or entered into is unable to meet the liabilities under policies issued or securities given by it; and
d
the combined proceeds of—
i
any relevant policies and annuity contracts, and
ii
any cash sums paid or alternative arrangements made under the F475Financial Services Compensation Scheme,
are inadequate to provide the whole of the amount secured,
the member and the member’s widow or widower shall be treated for the purposes of section 46 as only entitled to such part (if any) of the member’s or, as the case may be, the member’s widow’s or widower’s guaranteed minimum pension as is provided by the proceeds mentioned in paragraph (d).
4
A policy or annuity is relevant for the purposes of subsection (3) if taking it out or entering into it constituted the transaction to which section 19 applies.
5
For the purposes of section 46 a person shall be treated as entitled to any guaranteed minimum pension to which he would have been entitled—
a
if a lump sum had not been paid instead of that pension under provisions included in a scheme by virtue of section 21(1); or
b
if that pension had not been forfeited under provisions included in a scheme by virtue of section 21(2).
F3976
For the purposes of section 46, a person shall be treated as entitled to any guaranteed minimum pension to which he would have been entitled but for any reduction under section 15A.
F5037
For the purposes of section 46, a person shall be treated as entitled to any guaranteed minimum pension to which he would have been entitled but for any order under section 342A of the Insolvency Act 1986 (recovery of excessive pension contributions) or under section 36A of the Bankruptcy (Scotland) Act 1985.
I1C16C42C39C11C1748C42C39C17 Reduced benefits where minimum payments or minimum contributions paid.
1
Subject to subsection (3), this subsection applies where for any period—
a
minimum payments have been made in respect of an earner to an occupational pension scheme which is a money purchase contracted-out scheme in relation to the earner’s employment, or
b
minimum contributions have been paid in respect of an earner under section 43.
2
Where subsection (1) applies then, for the purposes of section 46—
a
the earner shall be treated, as from the date on which he reaches pensionable age, as entitled to a guaranteed minimum pension at a prescribed weekly rate arising from that period in that employment;
F23b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
in prescribed circumstances F24... age any widow or widower of the earner shall be treated as entitled to a guaranteed minimum pension at a prescribed weekly rate arising from that period;
M16and where subsection (1)(b) applies paragraphs (a) to (c) of this subsection apply also for the purposes of F9section 47(2) of the Social Security Contributions and Benefits Act 1992 and paragraph 3(2) of Schedule 7 to that Act, but with the omission from paragraph (a) of the words “in that employment”.
3
Where the earner is a married woman or widow, subsection (1) shall not have effect by virtue of paragraph (a) of that subsection in relation to any period during which there is operative an election that her liability in respect of primary Class 1 contributions shall be a liability to contribute at a reduced rate.
4
The power to prescribe a rate conferred by subsection (2)(a) includes power to prescribe a nil rate.
F64Effect of reduced contributions and rebates on social security benefits
S. 48A inserted (6.4.1996 for specified purposes, 6.4.1997 in so far as not already in force) by Pensions Act 1995 (c. 26), ss. 140(1), 180(1); S.I. 1996/778, art. 2(5)(a), Sch. Pt. 5; S.I. 1997/664, art. 2(3), Sch. Pt. 2
C42C39C1748AC42C39C17Additional pension and other benefits
C301
In relation to any tax week where—
a
the amount of a Class 1 contribution in respect of the earnings paid to or for the benefit of an earner in that week is reduced under section 41 or 42A, or
b
an amount is paid under section 45(1) in respect of the earnings paid to or for the benefit of an earner,
section 44(6) of the Social Security Contributions and Benefits Act 1992 (earnings factors for additional pension) shall have effect, except in prescribed circumstances, as if no primary Class 1 contributions had been paid or treated as paid upon those earnings for that week and section 45A of that Act did not apply (where it would, apart from this subsection, apply).
2
Where the whole or part of a contributions equivalent premium has been paid or treated as paid in respect of the earner, the Secretary of State may make a determination reducing or eliminating the application of subsection (1).
3
Subsection (1) is subject to regulations under paragraph 5(3A) to (3E) of Schedule 2.
4
Regulations may, so far as is required for the purpose of providing entitlement to additional pension (such as is mentioned in section 44(3)(b) of the Social Security Contributions and Benefits Act 1992) but to the extent only that the amount of additional pension is attributable to provision made by regulations under section 45(5) of that Act, disapply subsection (1).
C675
In relation to earners where, by virtue of subsection (1), section 44(6) of the Social Security Contributions and Benefits Act 1992 has effect, in any tax year, as mentioned in that subsection in relation to some but not all of their earnings, regulations may modify the application of section 44(5) F389or (5A) of that Act.
F10Women, married women and widows
S. 49 and cross heading substituted (19.7.1995) by Pensions Act 1995 (c. 26), s. 180(2)(a), Sch. 4 para. 16
I149F10Women, married women and widows.
The Secretary of State may make regulations modifying, in such manner as he thinks proper—
a
this Chapter in its application to women born on or after 6th April 1950, and
b
sections 41, 42, 46(1), 47(2) and (5) and 48, in their application to women who are or have been married
C42C39C17C56C57Chapter III Termination of contracted-out or appropriate scheme status: state scheme premiums
Approval of arrangements for schemes ceasing to be certified
I1C56C5750C42C39C17C56C57 Powers of F328Inland Revenue to approve arrangements for scheme ceasing to be certified.
1
In the case of an occupational pension scheme or a personal pension scheme which is or has been certified as a contracted-out or, as the case may be, an appropriate scheme, the F328Inland Revenue may, for the event of, or in connection with, its ceasing to be such a scheme, approve any arrangements made or to be made in relation to the scheme, or for its purposes, for the preservation or transfer—
a
in the case of an occupational pension scheme other than a money purchase contracted-out scheme—
i
of earners’ accrued rights to guaranteed minimum pensions under the scheme F150or accrued rights to pensions under the scheme attributable to their service on or after the principal appointed day;
C31ii
of the liability for the payment of F151such pensions in respect of persons who have then become entitled to receive them;
F402iii
of safeguarded rights under the scheme;
b
in the case of a money purchase contracted-out scheme or a personal pension scheme, of protected F403, or safeguarded, rights under the scheme.
F951A
The power of the F328Inland Revenue to approve arrangements under this section—
a
includes power to approve arrangements subject to conditions, and
b
may be exercised either generally or in relation to a particular scheme.
C331B
Arrangements may not be approved under this section unless any prescribed conditions are met
2
If the scheme ceases to be a contracted-out scheme or an appropriate scheme (whether by being wound up or otherwise) and the F328Inland Revenue either—
b
F329have declined to approve arrangements relating to it,
the F328Inland Revenue may issue a certificate to that effect.
3
4
Regulations may provide that where the F328Inland RevenueF331have approved arrangements under subsection (1) in respect of an occupational pension scheme (other than a money purchase scheme) any provision of this Part (other than sections 18, 19, 26 to 33 and 43 to 45) or Chapter III of Part IV or Chapter II of Part V shall have effect subject to such modifications as may be specified in the regulations.
5
Any such regulations shall have effect in relation to arrangements whenever approved, unless they provide that they are only to have effect in relation to arrangements approved after they come into force.
6
It is hereby declared that an approval of arrangements relating to an occupational pension scheme which is not a money purchase contracted-out scheme may be withdrawn at any time, notwithstanding that the scheme has been wound up.
F1527
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I151C42C39C17 Calculation of guaranteed minimum pensions preserved under approved arrangements.
C12C131
This section applies where—
a
b
one or more of the five tax years ending with the tax year in which the scheme ceases to be contracted-out is a relevant year in relation to the earner.
C12C132
Where this section applies then, except in such circumstances as may be prescribed, section 16(1) shall have effect, subject to the following provisions, that is to say—
a
b
any relevant earnings factors derived from contributions or earnings in respect of any year (“the relevant contributions year”) shall be treated as increased by 12 per cent. compound for each of those five tax years, other than any of those years which—
i
constitutes or begins before the relevant contributions year, or
ii
begins after the final relevant year in relation to the earner.
C12C133
Subsection (2) shall not apply in any case where its application would result in the amount of the guaranteed minimum being greater than it would have been apart from that subsection.
4
Regulations may provide that subsections (1) to (3) shall have effect with prescribed modifications in relation to a scheme which, immediately before it ceased to be contracted-out, contained provisions authorised by section 16(2).
5
In this section “relevant year” and “final relevant year” have the same meanings as in section 16.
Supervision of formerly certified schemes
I152C42C39C17 Supervision of schemes which have ceased to be certified.
1
Section 53 shall apply for the purpose of making provision for securing the continued supervision of occupational pension schemes as respects which subsection (2) applies and section 54 shall apply for the purpose of making corresponding provision in relation to personal pension schemes as respects which subsection (3) applies.
2
This subsection applies as respects any occupational pension scheme, other than a public service pension scheme, where—
F153a
the scheme has ceased to be a contracted-out scheme, and
b
any persons remain who fall within any of the following categories.
F1542A
Those categories are—
a
any persons entitled to receive, or having accrued rights to—
i
guaranteed minimum pensions, or
ii
pensions under the scheme attributable to service on or after the principal appointed day but before the scheme ceased to be contracted-out,
b
any persons who have protected rights under the scheme or are entitled to any benefit giving effect to protected rights under it
F404c
any persons who have safeguarded rights under the scheme or are entitled to any benefit giving effect to safeguarded rights under it.
3
This subsection applies as respects any personal pension scheme where—
F155a
the scheme has ceased to be an appropriate scheme, and
F1564
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1565
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1566
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I1C56C5753C42C39C17C56C57 Supervision: former contracted-out schemes.
F1571
1A
An appeal on a point of law shall lie to the High Court or, in Scotland, the Court of Session from a direction under subsection (1) at the instance of the trustees or managers or the employer, or any person claiming under them.
1B
A direction under subsection (1) shall be enforceable—
a
in England and Wales, in a county court as if it were an order of that court, and
b
in Scotland, by the sheriff, as if it were an order of the sheriff and whether or not the sheriff could himself have given such an order
F1582
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
F97...
F97If a certificate has been issued under subsection (2) of section 50 and has not been cancelled under subsection (3) of that section, any liabilities in respect of such entitlement or rights as are referred to in section 52(2A)(a) or (b) must, except in prescribed circumstances, be discharged (subject to any directions under subsection (1)) in a prescribed manner and within a prescribed period or such longer period as the F332Inland Revenue may allow
F1594
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1595
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I1C56C5754C42C39C17C56C57 Supervision: former appropriate personal pension schemes.
1
1A
An appeal on a point of law shall lie to the High Court or, in Scotland, the Court of Session from a direction under subsection (1) at the instance of the trustees or managers or the employer, or any person claiming under them.
1B
A direction under subsection (1) shall be enforceable—
a
in England and Wales, in a county court as if it were an order of that court, and
b
in Scotland, by the sheriff, as if it were an order of the sheriff and whether or not the sheriff could himself have given such an order.
2
F54...
F54If a certificate has been issued under subsection (2) of section 50 and has not been cancelled under subsection (3) of that section, any liabilities in respect of such entitlement or rights as are referred to in section 52(3)(b) must, except in prescribed circumstances, be discharged (subject to any directions under subsection (1)) in a prescribed manner and within a prescribed period or such longer period as the F333Inland Revenue may allow
F1603
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F399Part IIIA Safeguarded rights
Pt. 3A inserted (11.11.1999 for specified purposes, 1.12.2000 in so far as not already in force) by Welfare Reform and Pensions Act 1999 (c. 30), ss. 36, 89(5)(a); S.I. 2000/1047, art. 2(2)(d), Sch. Pt. 4
68A Safeguarded rights.
1
Subject to subsection (2), the safeguarded rights of a member of an occupational pension scheme or a personal pension scheme are such of his rights to future benefits under the scheme as are attributable (directly or indirectly) to a pension credit in respect of which the reference rights are, or include, contracted-out rights or safeguarded rights.
2
If the rules of an occupational pension scheme or a personal pension scheme so provide, a member’s safeguarded rights are such of his rights falling within subsection (1) as—
C74C80a
in the case of rights directly attributable to a pension credit, represent the safeguarded percentage of the rights acquired by virtue of the credit, and
b
in the case of rights directly attributable to a transfer payment, represent the safeguarded percentage of the rights acquired by virtue of the payment.
3
For the purposes of subsection (2)(a), the safeguarded percentage is the percentage of the rights by reference to which the amount of the credit is determined which are contracted-out rights or safeguarded rights.
4
For the purposes of subsection (2)(b), the safeguarded percentage is the percentage of the rights in respect of which the transfer payment is made which are contracted-out rights or safeguarded rights.
5
In this section—
“contracted-out rights” means such rights under, or derived from—
- a
an occupational pension scheme contracted-out by virtue of section 9(2) or (3), or
- b
an appropriate personal pension scheme,
as may be prescribed;
- a
“reference rights”, in relation to a pension credit, means the rights by reference to which the amount of the credit is determined.
68B Requirements relating to safeguarded rights.
Regulations may prescribe requirements to be met in relation to safeguarded rights by an occupational pension scheme or a personal pension scheme.
68C Reserve powers in relation to non-complying schemes.
1
This section applies to—
a
any occupational pension scheme, other than a public service pension scheme, and
b
any personal pension scheme.
2
If any scheme to which this section applies does not comply with a requirement prescribed under section 68B and there are any persons who—
a
have safeguarded rights under the scheme, or
b
are entitled to any benefit giving effect to such rights under the scheme,
the Inland Revenue may direct the trustees or managers of the scheme to take or refrain from taking such steps as they may specify in writing for the purpose of safeguarding the rights of persons falling within paragraph (a) or (b).
3
A direction under subsection (2) shall be final and binding on the trustees or managers to whom the direction is given and any person claiming under them.
4
An appeal on a point of law shall lie to the High Court or, in Scotland, the Court of Session from a direction under subsection (2) at the instance of the trustees or managers, or any person claiming under them.
5
A direction under subsection (2) shall be enforceable—
a
in England and Wales, in a county court, as if it were an order of that court, and
b
in Scotland, by the sheriff, as if it were an order of the sheriff and whether or not the sheriff could himself have given such an order.
68D Power to control transfer or discharge of liability.
Regulations may prohibit or restrict the transfer or discharge of any liability under an occupational pension scheme or a personal pension scheme in respect of safeguarded rights except in prescribed circumstances or on prescribed conditions.
Part IV Protection for early leavers
Chapter I preservation of benefit under occupational schemes
I169 Scope of Chapter I: the preservation requirements.
1
This Chapter has effect in relation to the preservation of benefit under occupational pension schemes to which it applies.
2
In this Act “the preservation requirements” means the requirements specified in or under sections 71 to 82.
3
This Chapter applies to any occupational pension scheme whose resources are derived in whole or in part from—
a
payments made or to be made by one or more employers of earners to whom the scheme applies, being payments either—
i
under an actual or contingent legal obligation; or
ii
in the exercise of a power conferred, or the discharge of a duty imposed, on a Minister of the Crown, government department or any other person, being a power or duty which extends to the disbursement or allocation of public money; or
b
such other payments by the earner or his employer, or both, as may be prescribed for different categories of scheme.
I170 Interpretation.
1
In this Chapter—
“scheme” means an occupational pension scheme to which this Chapter applies;
“relevant employment”, in relation to a scheme, means any employment to which the scheme applies;
“long service benefit”, in relation to a scheme, means the benefits which will be payable under the scheme, in accordance with legal obligation, to or in respect of a member of the scheme on the assumption—
- a
that he remains in relevant employment, and
- b
that he continues to render service which qualifies him for benefits,
until he attains normal pension age; and in this definition “benefits” means—
- i
retirement benefit for the member himself at normal pension age, or
- ii
benefit for the member’s wife or husband, widow or widower, or dependants, or others, on his attaining that age or his later death, or
- iii
both such descriptions of benefit.
- a
2
In this Act, unless the context otherwise requires, “pensionable service”, in relation to a scheme and a member of it, means, subject to subsection (3), service in relevant employment which qualifies the member (on the assumption that it continues for the appropriate period) for long service benefit under the scheme.
3
There shall be taken into account as pensionable service only actual service, that is to say—
a
service notionally attributable for any purposes of the scheme is not to be regarded as pensionable service; and
b
no account is to be taken of scheme rules by which a period of service can be treated for any purpose as being longer or shorter than it actually is.
I171 Basic principle as to short service benefit.
1
A scheme must make such provision that where a member’s pensionable service is terminated before normal pension age and—
a
he has at least 2 years’ qualifying service, or
b
a transfer payment in respect of his rights under a personal pension scheme has been made to the scheme,
he is entitled to benefit consisting of or comprising benefit of any description which would have been payable under the scheme as long service benefit, whether for himself or others, and calculated in accordance with this Chapter.
2
The benefit to which a member is entitled under subsection (1) is referred to in this Act as “short service benefit”.
3
Subject to subsection (4), short service benefit must be made payable as from normal pension age or, if in the member’s case that age is earlier than 60, then from the age of 60.
4
Short service benefit payable on or in respect of the member’s death after normal pension age must be made payable as from his death or within such time after it as long service benefit payable on or in respect of his death would be payable.
5
In applying subsections (3) and (4), no regard is to be had to the operation of any scheme rule, taking effect at any time after termination of the member’s pensionable service, as to what is normal pension age under the scheme.
6
A scheme must not provide for payment of short service benefit in the form of a lump sum at any time before normal pension age, except in such circumstances as may be prescribed.
7
In subsection (1) “2 years’ qualifying service” means 2 years (whether a single period of that duration or two or more periods, continuous or discontinuous, totalling 2 years) in which the member was at all times employed either—
a
in pensionable service under the scheme; or
b
in service in employment which was contracted-out by reference to the scheme; or
c
in linked qualifying service under another scheme.
8
For the purposes of subsection (7), no regard shall be had to whether or not the service was of the same description in the whole of the 2 years.
9
A period of service previously terminated is not to count towards the 2 years’ qualifying service unless it counts towards qualification for long service benefit, and need then count only to the same extent and in the same way.
I172 No discrimination between short service and long service beneficiaries.
1
A scheme must not contain any rule which results, or can result, in a member being treated less favourably for any purpose relating to short service benefit than he is, or is entitled to be, treated for the corresponding purpose relating to long service benefit.
2
Subsection (1) does not apply to any rule in its application to members whose pensionable service terminated before the rule came into force, unless the rule—
a
was made after the termination of a member’s pensionable service; and
b
results, or is capable of resulting, in any treatment less favourable for him than that to which he would have been entitled but for the rule.
3
Subsection (1) does not apply to a rule which merely confers discretion on the scheme’s trustees or managers, or others, so long as it is not a rule requiring the discretion to be exercised in any discriminatory manner against members in respect of their short service benefit.
I173 Form of short service benefit and its alternatives.
1
Subject to subsection (2) and section 81, a member’s short service benefit must be—
a
payable directly out of the resources of the scheme; or
b
assured to him by such means as may be prescribed.
2
Subject to subsections (3) to (5), a scheme may, instead of providing short service benefit, provide—
a
for the member’s accrued rights (including any transfer credits allowed under the scheme)—
i
to be transferred to another occupational pension scheme with a view to acquiring transfer credits for the member under the other scheme, or
b
for such alternatives to short service benefit as may be prescribed.
3
The option conferred by subsection (2)(a) is additional to any obligation imposed by Chapter IV of this Part.
4
The alternatives specified in subsection (2)(a) and (b) may only be by way of complete or partial substitute for short service benefit—
a
if the member consents; or
b
in such other cases as may be prescribed.
5
An alternative prescribed under subsection (2)(b) may only include payment by way of return of contributions—
a
if they relate to a period of service before 6th April 1975; or
b
if there has been such a payment relating to a period of service before that date and the contributions relate to a period of service of less than 5 years after that date.
I174 Computation of short service benefit.
1
Subject to the provisions of this section, a scheme must provide for short service benefit to be computed on the same basis as long service benefit.
2
For that purpose, no account is to be taken of any rule making it (directly or indirectly) a condition of entitlement to benefit that pensionable service shall have been of any minimum duration.
3
Subsection (1) does not apply to so much of any benefit as accrues at a higher rate, or otherwise more favourably, in the case—
a
of members with a period of pensionable service of some specified minimum length, or
b
of members remaining in pensionable service up to some specified minimum age.
4
Subsection (1) does not apply to so much of any benefit as is of an amount or at a rate unrelated to length of pensionable service or to the number or amount of contributions paid by or for the member.
5
Regulations may provide that subsection (1) shall not apply to any category of schemes or members, or description of benefit.
6
So far as any short service benefit is not required to be computed in accordance with subsection (1), it must be computed on the basis of uniform accrual, so that at the time when pensionable service is terminated, it bears the same proportion to long service benefit as the period of that service bears to the period from the beginning of that service to the time when the member would attain normal pension age or such lower age as may be prescribed.
7
Where long service benefit is related to a member’s earnings at, or in a specified period before, the time when he attains normal pension age, short service benefit must be related, in a corresponding manner, to his earnings at, or in the same period before, the time when his pensionable service is terminated.
8
A scheme must comply with any regulations relating to the basis of computation of short service benefit, including regulations providing for the avoidance of fractional amounts and otherwise to facilitate computation.
I175 Credits.
1
In this section—
“supplementary credits”, in relation to a scheme and a member’s entitlement to its benefits, means any increase of benefit or additional benefit to which the member may become entitled—
- a
in consequence of any provision made by or under the scheme after he becomes a member of it (to the extent that it applies to any previous pensionable service of his); or
- b
by reference to previous service of his (whether or not pensionable service); or
- c
in such other circumstances as may be prescribed,
including under paragraph (b) any transfer credits;
- a
“purchased credits” means supplementary credits for which, under the rules of the scheme, a member may or must make a payment in whole or in part (whether by means of additional contributions, or of deduction from benefit, or otherwise, and whether separately for each credit or by one or more payments for one or more credits);
“bonus credits” means supplementary credits other than purchased credits or transfer credits.
2
Subject to subsections (3) to (7), if a scheme provides for long service benefit to include supplementary credits, it must—
a
provide for such credits to be included in short service benefit, and
b
provide for all credits to be so included.
3
Where purchased credits have not been paid for in full at or before termination of pensionable service, the short service benefit must include the appropriate proportion of the credits.
4
In subsection (3) “the appropriate proportion of the credits” means—
a
if they were to be paid for by a fixed amount, the same proportion as the amount paid bears to the full amount payable; and
b
otherwise, the same proportion as the period between the time when the first payment became due and the termination of the member’s pensionable service bears to the whole period over which payment was to be made.
5
If the benefit includes bonus credits, or credits for which payment is to be made by deduction from that or another benefit, the credits to be included in the benefit and (where applicable) the amount of the deduction must be computed on the assumption—
a
that the credits accrue in full only to a member remaining in pensionable service until normal pension age; and
b
that the amount of any such credit, and also of any relevant deduction, accrues at a uniform rate from the time when the credit was awarded up to the time of his attaining that age.
6
Where any such deduction is a percentage of benefit, the percentage must be the same for short service as for long service benefit.
7
A scheme must comply with any regulations made with respect to the manner in which supplementary credits are to be included in short service benefit, including regulations providing for the avoidance of fractional amounts and otherwise to facilitate computation.
I176 Pension increases.
1
A scheme which by its rules provides for increases of long service benefit from time to time (whether by way of upwards revaluation or otherwise) must provide for corresponding increases of short service benefit in the case of members whose pensionable service terminates at any time after the coming into force of any such rule.
2
Where the provision for increasing long service benefit involves the exercise of a discretion, a corresponding discretion must be conferred in relation to short service benefit.
3
If an increase of long service benefit is to take effect at a specified time after termination of service, the corresponding increase of short service benefit must take effect at the same time after the time when short service benefit becomes payable.
4
Where provision is made for increase of long service benefit otherwise than at a fixed rate, short service benefit may nevertheless be subject to increase at a fixed rate, if the rate is at least 3 per cent. a year compound.
I1C5277 Assignment, surrender and commutation of benefit.
F1131
Except as provided by this section, a scheme—
a
must contain rules preventing assignment of short service benefit; and
b
must not enable such benefit to be surrendered or commuted.
2
Subsection (1) does not apply to any assignment, surrender or commutation of a policy of insurance or annuity contract in accordance with conditions prescribed by regulations under section 19(4)(b) or (c).
3
A scheme may enable assignment in favour of the member’s widow or widower or dependant (whether or not the benefit is in payment).
4
A scheme may, at the option of the member, enable surrender—
a
to provide benefit for the member’s widow, widower or dependant;
b
to acquire for the member transfer credits under the rules of another occupational pension scheme or rights under the rules of a personal pension scheme or a self-employed pension arrangement;
c
to acquire for the member entitlement to further benefits under the same scheme, relating both to a period of pensionable service previously terminated and also to a subsequent period of service in relevant employment.
5
A scheme may enable a member’s benefit to be commuted—
a
in a case where he opts (at any time) to commute at or after normal pension age; or
b
in exceptional circumstances of serious ill-health; or
c
in such other circumstances as may be prescribed.
6
A scheme may enable benefit for a member’s widow, widower or dependant to be commuted in such circumstances as may be prescribed.
7
In the application of this section to Scotland, for references to assignment there shall be substituted references to assignation.
I178 Forfeiture, etc.
F1131
Except so far as permitted by this section, a scheme must not contain any provision for forfeiture of short service benefit.
2
Provision may be made for forfeiture of the whole or part of any short service benefit by reference to an event occurring after it becomes payable if—
a
long service benefit is also forfeited by reference to the event; and
b
in the opinion of the Board the provision does not appear to discriminate against members entitled to short service benefit.
3
Provision may be made for forfeiture by reference to—
a
the assignment or attempted assignment or, in Scotland, the assignation or attempted assignation of the benefit contrary to the provisions of the scheme;
b
the member’s bankruptcy or the sequestration of the member’s estate or, in the case of benefit for a widow or widower or dependant of the member, the beneficiary’s bankruptcy or the sequestration of the beneficiary’s estate.
4
Such forfeiture as mentioned in subsection (3) may be by reference to an event occurring either before or after the benefit would otherwise be payable, if the same provision is made in relation to long service benefit.
5
Provision for forfeiture may be made—
a
in a public service pension scheme, by reference to the member being convicted of an offence—
i
committed by him before the benefit becomes payable and in connection with relevant employment, and
ii
certified by a Minister of the Crown either to have been gravely injurious to the State or to be liable to lead to serious loss of confidence in the public service;
b
in any case, by reference to the member having been convicted of any offence committed before the benefit becomes payable, being—
i
an offence of treason, or
ii
one or more offences under the Official Secrets Acts 1911 to 1989 for which the member has been sentenced on the same occasion to a term of imprisonment of, or to two or more consecutive terms amounting in the aggregate to, at least 10 years.
6
No scheme rule must operate so as to deprive any person of short service benefit by reference to—
a
failure by any person to make a claim for the benefit or for any payment due as benefit; or
b
failure by any person, at any time after termination of pensionable service, to give any notice, or comply with any formality, required by the scheme as a condition of entitlement.
7
Subsection (6)(a) is not to prevent reliance on any enactment relating to the limitation of actions; and a scheme may provide for the right to receive any payment to be forfeited if it is not claimed within 6 years of the date on which it becomes due.
I179 Charges, liens and set-offs.
F1131
A scheme must not enable a member’s employer to exercise any description of charge or lien on, or set-off against, short service benefit, to the extent that it includes transfer credits.
2
Subject to subsection (1), a scheme may enable a charge or lien on, or set-off against, a member’s short service benefit for the purpose of enabling the employer to obtain the discharge by the member of some monetary obligation due to the employer and arising out of a criminal, negligent or fraudulent act or omission by the member.
3
Subject to subsection (4), a scheme must not enable the employer to recover from, or retain out of, the resources of the scheme any sum in respect of a monetary or other obligation due to him from any member.
4
Subsection (3) does not apply to an obligation arising as mentioned in subsection (2) but, if the scheme permits recovery or retainer of sums in respect of such an obligation, it must provide that—
a
unless the employer and the member agree otherwise in writing, the recovery or retainer is limited—
i
to the actuarial value of the member’s actual or prospective benefits at that time, or
ii
to the amount of the obligation,
whichever is the less; and
b
the member is entitled to a certificate showing the amount retained or recovered and its effect on his benefits or prospective benefits; and
c
in the event of any dispute as to the amount to be retained or recovered, the employer is only entitled to enforce the charge, lien or set-off after the obligation has become enforceable under an order of a competent court or the award of an arbitrator or, in Scotland, an arbiter to be appointed (failing agreement between the parties) by the sheriff.
I180 Power to modify ss. 77 to 79 as respects alternative benefits.
F113In respect of any of the benefits or rights alternative to short service benefit provided in accordance with section 73(2), sections 77, 78 and 79 shall apply with such modifications as may be prescribed.
I181 Discharge of liability where short service or alternative benefits secured by insurance policies or annuity contracts.
A transaction to which section 19 applies discharges the trustees or managers of an occupational pension scheme from their liability to provide for or in respect of any person short service benefit or any alternative to short service benefit—
a
if it is carried out not earlier than the time when that person’s pensionable service terminates; and
b
if and to the extent that it results in short service benefit or any alternative to short service benefit for or in respect of that person being appropriately secured (within the meaning of that section); and
c
if and to the extent that the requirements set out in paragraph (a) or (c) of section 19(5) are satisfied.
I182 Supplementary regulations.
1
Regulations may provide that a scheme is not to be treated as conforming with the preservation requirements unless it contains express rules to the effect (but not necessarily in the words) of any specified provision contained in sections 71 to 79.
2
Regulations may make provision as to the circumstances in which, for the purposes of sections 70 to 79—
a
a period of a person’s service in two or more different employments is to be treated as a period of service in one or more of those employments; or
b
a person’s service in any employment is to be treated as terminated or not terminated.
Chapter II Revaluation of accrued benefits (excluding guaranteed minimum pensions)
I183 Scope of Chapter II.
1
This Chapter applies for the purpose of revaluing—
a
F406relevant benefits payable to or in respect of a member of an occupational pension scheme where—
i
his pensionable service ends on or after 1st January 1986;
ii
on the date on which his pensionable service ends (in this Chapter referred to as “the termination date”) he has accrued rights to benefit under the scheme;
iii
the period beginning with the day after the termination date and ending with the date on which he attains normal pension age (in this Chapter referred to as “the pre-pension period”) is at least 365 days; and
iv
in the case of benefit payable to any other person in respect of the member, the member dies after attaining normal pension age; and
b
F406relevant benefits payable to or in respect of a member of a personal pension scheme—
i
in respect of whom contributions to the scheme have ceased to be paid; and
ii
who has accrued rights to benefit under the scheme.
F4071A
The following are relevant benefits for the purposes of subsection (1)—
a
any benefits payable otherwise than by virtue of rights which are attributable (directly or indirectly) to a pension credit, and
b
in the case of a salary related occupational pension scheme, any benefits payable by virtue of such rights, to the extent that the rights involve the member being credited by the scheme with notional pensionable service.
2
In calculating 365 days for the purpose of subsection (1)(a)(iii), any day which is 29th February shall be disregarded.
3
In subsection (1)(b)—
a
the reference to a personal pension scheme does not include a scheme which is comprised in an annuity contract made before 4th January 1988; and
b
the reference to contributions includes any minimum contributions.
F4084
For the purposes of this section, an occupational pension scheme is salary related if—
a
it is not a money purchase scheme, and
b
it does not fall within a prescribed class.
I184 Basis of revaluation.
1
Subject to subsections (2) and (3), in the case of such benefits as are mentioned in section 83(1)(a), any pension or other retirement benefit payable under the scheme in question to the member and any pension or other benefit payable under it to any other person in respect of him, is to be revalued by the final salary method.
2
If—
a
any such benefit is an average salary benefit or flat rate benefit; and
b
it appears to the trustees or managers of the scheme under which it is payable that it is appropriate to revalue the benefit by the average salary method or, as the case may be, the flat rate method,
then the benefit shall be revalued using that method.
3
If any benefit such as is mentioned in paragraph (a) of section 83(1) is a money purchase benefit, and in the case of such benefit as is mentioned in paragraph (b) of that section, the benefit shall be revalued using the money purchase method.
4
In this section—
“average salary benefit” means benefit the rate or amount of which is calculated by reference to the average salary of a member over the period of service on which the benefit is based;
“flat rate benefit” means any benefit the rate or amount of which is calculated by reference solely to the member’s length of service;
“average salary method”, “final salary method”, “flat rate method” and “money purchase method” have the meanings given in Schedule 3.
5
The fact that a scheme provides for the amount of the pension or other benefit for a member or for any other person in respect of him to be increased during the pre-pension period—
a
F194b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
does not in itself result in conflict with this section, if the increase falls to be determined by reference to an amount from which the guaranteed minimum for a member or a member’s widow or widower has not been deducted.
I185 Revaluation not to apply to substituted benefit.
Nothing in this Chapter is to be construed as requiring the revaluation of any pension or other benefit provided by virtue of section 73(2)(b) F409or 101D(2)(b) by way of complete substitute for another pension or benefit.
I186 Supplementary provisions.
1
In making any calculation for the purposes of this Chapter in relation to any occupational pension scheme—
a
any commutation, forfeiture or surrender of,
b
any charge or lien on, and
c
any set-off against,
the whole or part of a pension shall be disregarded.
2
The same money may not be treated as providing both the increase in benefit required by this Chapter and the benefit required by Chapter III.
C47C72Chapter III Protection of increases in guaranteed minimum pensions (“anti-franking”)
Pt. IV Ch. III modified (1.4.1998) by The Local Government Pension Scheme Regulations 1997 (S.I. 1997/1612), regs. 1, 90
Pt. IV Ch. III excluded (12.2.2001 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), s. 86(1)(b)(2), Sch. 5 para. 14 (with s. 83(6)); S.I. 2000/3166, art. 2(5) (as amended (28.3.2001) by S.I. 2001/1252, art. 3)
I187 General protection principle.
1
This subsection applies where—
a
there is an interval between—
i
the date on which an earner ceases to be in employment which is contracted-out by reference to an occupational pension scheme which is not a money purchase contracted-out scheme (“the cessation date”); and
ii
the date on which his guaranteed minimum pension under that scheme commences (“the commencement of payment date”);
b
the relevant sum exceeds his guaranteed minimum on the day after the cessation date; and
c
on the commencement of payment date or at any time after it his guaranteed minimum pension under the scheme exceeds the amount of his guaranteed minimum under it on the day after the cessation date.
2
This subsection applies where—
a
there is an interval between the earner’s cessation date and whichever of the following is the earlier—
i
the date of his death; or
ii
his commencement of payment date;
b
the relevant sum exceeds one half of the earner’s guaranteed minimum on the day after the cessation date; and
c
at any time when a pension under the occupational pension scheme is required to be paid to the earner’s widow or widower, the widow’s or, as the case may be, the widower’s guaranteed minimum pension under the scheme exceeds one half of the earner’s guaranteed minimum on the day after the cessation date.
3
Where subsection (1) or (2) applies, the weekly rate of the pension payable to the member at any time when that pension is required to be paid or, as the case may be, payable to the widow or widower at any such time as is mentioned in subsection (2)(c) shall be an amount not less—
a
in a case where by virtue of section 73(2)(b) a pension is provided by way of complete substitute for short service benefit or, as the case may be, for widow’s or widower’s pension, than the weekly rate of that pension; and
b
in any other case, than the relevant aggregate.
4
In subsection (3) “the relevant aggregate” means the aggregate of the following—
a
the relevant sum;
b
the excess mentioned in subsection (1)(c) or, as the case may be, subsection (2)(c);
c
any amount which is an appropriate addition at the time in question; and
d
where the scheme provides that part of the earner’s or, as the case may be, the widow’s or widower’s pension shall accrue after the cessation date by reason of the earner’s employment after that date, the later earnings addition.
5
To the extent that amounts attributable to transfer credits have accrued by reason of any transfer before 1st January 1985, they are to be disregarded for the purposes of subsections (1)(c), (2)(c) and (4)(b).
6
Nothing in this section shall be construed as entitling an earner who has not reached normal pension age to any portion of a pension under a scheme to which he would not otherwise be entitled.
7
This section does not apply to a pension to which a person is entitled in respect of employment if—
a
the earner left the employment or left it for the last time before 1st January 1985; or
b
the employment ceased, or ceased for the last time, to be contracted-out in relation to him before that date.
I188 The relevant sum.
1
For the purposes of this Chapter “the relevant sum” means—
a
in a case where subsection (1) of section 87 applies—
i
if the earner reaches normal pension age on or before the cessation date, an amount equal to the weekly rate of his pension on the day after the cessation date; and
ii
if he reaches normal pension age after the cessation date, an amount equal to the weekly rate of any short service benefit which has accrued to him on the cessation date or, where no such benefit has then accrued, any other benefit to which this sub-paragraph applies and which has then accrued to him; and
b
in a case where subsection (2) of that section applies, an amount equal to the weekly rate at which, on the prescribed assumptions, a pension would have begun to be paid to the widow or widower if that person had satisfied the conditions for entitlement to a pension which are specified in the scheme.
2
Paragraph (a) of subsection (1) has effect subject to subsection (5) and to sections 87(5) and 91(1), and paragraph (b) of subsection (1) has effect subject to section 87(5).
3
The benefit other than short service benefit to which subsection (1)(a)(ii) applies is benefit—
a
which would have been provided as either the whole or part of the earner’s short service benefit; or
b
of which the earner’s short service benefit would have formed part,
if section 71(1)(a) had effect with the substitution of a reference to the service which the earner had on the cessation date for the reference to 2 years’ qualifying service.
4
Any such benefit is only to be included in the relevant sum to the extent that it does not exceed the amount which the scheme would have had to provide as short service benefit if section 71(1) had effect as mentioned in subsection (3).
5
If the payment of any part of the earner’s pension is postponed beyond the cessation date, the relevant sum is an amount equal to what would have been the weekly rate of his pension on the day after the cessation date if there had been no such postponement.
I189 The appropriate addition.
1
For the purposes of this Chapter “appropriate addition” means—
a
where a scheme provides that part of an earner’s or, as the case may be, a widow’s or widower’s pension shall accrue after the cessation date by reason of the earner’s employment after that date, an amount equal to the part which has so accrued; and
b
where a scheme provides that an earner’s or, as the case may be, a widow’s or widower’s pension which has accrued before that date shall be enhanced after that date if payment of the earner’s pension is postponed, the amount by which the unguaranteed element of the pension has been enhanced by reason of the postponement.
2
For the purposes of subsection (1)(b) the unguaranteed element of a pension is—
a
in the case of an earner’s pension, the excess of the pension on the day after the cessation date over the earner’s guaranteed minimum on that day; and
b
in the case of the widow’s or widower’s pension, the excess of that pension on that day over one half of the earner’s guaranteed minimum on that day.
I190 The later earnings addition.
1
For the purposes of this Chapter “the later earnings addition” means the amount (if any) by which the assumed later unguaranteed element exceeds the unguaranteed element.
2
In subsection (1)—
a
“the unguaranteed element” means the amount by which the relevant sum exceeds the earner’s guaranteed minimum on the day after his cessation date or, in the case of a widow’s or widower’s pension, one half of that minimum; and
b
“the assumed later unguaranteed element” means the amount by which the relevant sum would exceed the earner’s guaranteed minimum (or, in the case of a widow’s or widower’s pension, one half of that minimum) on the assumptions mentioned in subsection (3).
3
The assumptions mentioned in subsection (2) are—
a
that the relevant sum were calculated on the basis that the weekly rate of the pension or benefit which determines that sum had been calculated by reference to the level of earnings by reference to which that rate would have been calculated if the earner’s cessation date had fallen on the earlier of—
i
the earner’s commencement of payment date, or
ii
the date on which the earner ceased to be in pensionable service under the scheme; and
b
that the earner’s guaranteed minimum were such sum as bears the same proportion to the assumed later unguaranteed element as the guaranteed minimum mentioned in subsection (2)(a) bears to the unguaranteed element.
I191 Special provision where employment continues after it ceases to be contracted-out by reference to scheme.
1
If—
a
an earner’s employment ceases to be contracted-out by reference to an occupational pension scheme but the scheme continues to apply to it; or
b
an earner transfers from employment which is contracted-out by reference to an occupational pension scheme to employment to which the scheme applies but which is not contracted-out by reference to it,
the amount of any short service or other benefit which has accrued to the earner shall be computed for the purposes of section 88(1)(a)(ii) as it would be computed if he had ceased on the cessation date to be in employment to which the scheme applies.
2
If—
a
a benefit under a scheme is conditional on an earner attaining a particular age or having a particular length of service; and
b
one of the events mentioned in subsection (1) occurs before he has fulfilled the condition; but
c
he continues to be in employment to which the scheme applies until he has done so,
the earner shall be treated for the purposes of the previous provisions of this Chapter as if that benefit had accrued to him.
I192 Supplementary provisions.
1
In making any calculation for the purposes of this Chapter—
a
any commutation, forfeiture or surrender of,
b
any charge or lien on, and
c
any set-off against,
the whole or part of a pension shall be disregarded.
2
In calculating an earner’s guaranteed minimum for the purposes of this Chapter his earnings factor shall be taken to be that factor as increased, except as provided by subsection (3), by the last order under section 21 of the M26Social Security Pensions Act 1975 or section 148 of the M27Social Security Administration Act 1992 to come into force before the end of the tax year in which the cessation date falls.
3
If an earner’s cessation date falls in the tax year in which he attains pensionable age, subsection (2) shall have effect in relation to him as if for the words from “tax year” onwards there were substituted the words “
final relevant year
”
.
4
In this section “final relevant year” has the same meaning as in section 16.
5
Any reference in this Chapter to the weekly rate of a pension is to be construed, in relation to a pension payable otherwise than weekly, as a reference to the weekly sum which would be payable in respect of a pension of that amount payable weekly.
C3Chapter IV Transfer values
Pt. IV Ch. IV applied (31.5.1994) by The Railway Pensions (Protection and Designation of Schemes) Order 1994 (S.I. 1994/1432), arts. 1(1), 6(4)
I1C46C6993 Scope of Chapter IV.
1
This Chapter applies—
a
F66to any member of an occupational pension scheme—
i
whose pensionable service terminates on or after 1st January 1986 and at least one year before normal pension age; and
ii
who on the date when it terminates (in this Chapter referred to as “the termination date”) has accrued rights to benefit under the scheme; and
F66to any member of an occupational pension scheme—
i
whose pensionable service has terminated at least one year before normal pension age, and
ii
who on the date on which his pensionable service terminated had accrued rights to benefit under the scheme,
except a member of a salary related occupational pension scheme whose pensionable service terminated before 1st January 1986 and in respect of whom prescribed requirements are satisfied
b
to any member of a personal pension scheme (other than a scheme which is comprised in an annuity contract made before 4th January 1988) who has accrued rights to benefit under the scheme.
F4101ZA
In subsection (1), references to accrued rights to benefit do not include rights which are attributable (directly or indirectly) to a pension credit.
F671A
For the purposes of this section and the following provisions of this Chapter, an occupational pension scheme is salary related if—
a
the scheme is not a money purchase scheme, and
b
the scheme does not fall within a prescribed class.
1B
Regulations may—
a
provide for this Chapter not to apply in relation to a person of a prescribed description, or
b
apply this Chapter with prescribed modifications to occupational pension schemes—
i
which are not money purchase schemes, but
ii
where some of the benefits that may be provided are money purchase benefits.
2
Any reference to a member of an occupational pension scheme or a personal pension scheme in the following provisions of this Chapter is a reference to a member of such a scheme to whom this Chapter applies.
C4693AF68Salary related schemes: right to statement of entitlement
1
The trustees or managers of a salary related occupational pension scheme must, on the application of any member, provide the member with a written statement (in this Chapter referred to as a “statement of entitlement”) of the amount of the cash equivalent at the guarantee date of any benefits which have accrued to or in respect of him under the applicable rules.
F4111A
In subsection (1), the reference to benefits which have accrued does not include benefits which are attributable (directly or indirectly) to a pension credit.
2
In this section—
“the applicable rules” has the same meaning as in section 94;
“the guarantee date” means the date by reference to which the value of the cash equivalent is calculated, and must be—
- a
within the prescribed period beginning with the date of the application, and
- b
within the prescribed period ending with the date on which the statement of entitlement is provided to the member.
- a
3
Regulations may make provision in relation to applications for a statement of entitlement, including, in particular, provision as to the period which must elapse after the making of such an application before a member may make a further such application.
4
If, in the case of any scheme, a statement of entitlement has not been provided under this section, section 10 of the Pensions Act 1995 (power of the Regulatory Authority to impose civil penalties) applies to any trustee or manager who has failed to take all such steps as are reasonable to secure compliance with this section.
I1C4694 Right to cash equivalent.
1
Subject to the following provisions of this Chapter—
a
a member of an occupational pension scheme F69other than a salary related scheme acquires a right, when his pensionable service terminates F70(whether before or after 1st January 1986) , to the cash equivalent at the relevant date of any benefits which have accrued to or in respect of him under the applicable rules; and
F71aa
a member of a salary related occupational pension scheme who has received a statement of entitlement and has made a relevant application within three months beginning with the guarantee date in respect of that statement acquires a right to his guaranteed cash equivalent
b
a member of a personal pension scheme acquires a right to the cash equivalent at the relevant date of any benefits which have accrued to or in respect of him under the rules of the scheme.
F721A
For the purposes of subsection (1)(aa), a person’s “guaranteed cash equivalent” is the amount stated in the statement of entitlement mentioned in that subsection.
F4121B
In subsection (1), references to benefits which have accrued do not include benefits which are attributable (directly or indirectly) to a pension credit.
2
In this section—
“the applicable rules” means—
- a
any provision which the rules of the scheme do not contain but which a scheme must contain if it is to conform with the requirements of Chapter I; and
- b
the rules of the scheme, except so far as Chapter II or III overrides them; and
- c
any provision of Chapter II or III which overrides any of the rules of the scheme;
- a
F73“the guarantee date” has the same meaning as in section 93A(2)
“the relevant date” means, subject to regulations under section 98(4)—
- a
the date of the relevant application, or
- b
in the case of an occupational pension scheme, if it is later, the termination date;
- a
“the relevant application” means any application which the member has made under section 95 and not withdrawn.
F743
Regulations may provide that, in prescribed circumstances, subsection (1)(aa) does not apply to members of salary related occupational pension schemes or applies to them with prescribed modifications.
I1C4695 Ways of taking right to cash equivalent.
1
A member of an occupational pension scheme or a personal pension scheme who acquires a right to a cash equivalent under F195paragraph (a), (aa) or (b) of section 94(1) may only take it by making an application in writing to the trustees or managers of the scheme requiring them to use the cash equivalent to which he has acquired a right in whichever of the ways specified in subsection (2) or, as the case may be, subsection (3) he chooses.
2
In the case of a member of an occupational pension scheme, the ways referred to in subsection (1) are—
a
for acquiring transfer credits allowed under the rules of another occupational pension scheme—
i
the trustees or managers of which are able and willing to accept payment in respect of the member’s accrued rights, and
ii
which satisfies prescribed requirements;
b
for acquiring rights allowed under the rules of a personal pension scheme—
i
the trustees or managers of which are able and willing to accept payment in respect of the member’s accrued rights, and
ii
which satisfies prescribed requirements;
c
for purchasing from one or more F476insurers such as are mentioned in section 19(4)(a), chosen by the member and willing to accept payment on account of the member from the trustees or managers, one or more annuities which satisfy prescribed requirements;
d
for subscribing to other pension arrangements which satisfy prescribed requirements.
3
In the case of a member of a personal pension scheme, the ways referred to in subsection (1) are—
a
for acquiring transfer credits allowed under the rules of an occupational pension scheme—
i
the trustees or managers of which are able and willing to accept payment in respect of the member’s accrued rights, and
ii
which satisfies prescribed requirements;
b
for acquiring rights allowed under the rules of another personal pension scheme—
i
the trustees or managers of which are able and willing to accept payment in respect of the member’s accrued rights, and
ii
which satisfies prescribed requirements;
c
for subscribing to other pension arrangements which satisfy prescribed requirements.
F4524
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
Except in such circumstances as may be prescribed—
a
subsection (2) is to be construed as if paragraph (d) were omitted; and
b
subsection (3) is to be construed as if paragraph (c) were omitted.
6
Without prejudice to the generality of subsections (2) and (3), the powers conferred by those subsections include power to provide that a scheme or pension arrangement or, in the case of subsection (2), an annuity must satisfy requirements of the Inland Revenue.
7
A member of an occupational pension scheme may only exercise the right conferred by this section on or before the last option date.
8
In subsection (7) “the last option date” means, subject to regulations under section 98, the date which falls—
a
one year before the date on which the member attains normal pension age; or
b
six months after the termination date,
whichever is the later.
9
An application to the trustees or managers of the scheme under subsection (1) is to be taken to have been made if it is delivered to them personally, or sent by post in a registered letter or by the recorded delivery service.
I1C4696 Further provisions concerning exercise of option under s. 95.
1
A member may exercise the option conferred by subsection (1) of section 95 in different ways in relation to different portions of his cash equivalent, but a member who exercises that option must do so—
a
in relation to the whole of his cash equivalent; or
b
if subsection (2) applies, in relation to the whole of the balance mentioned in subsection (3).
C42
This subsection applies where—
a
the trustees or managers—
i
of an occupational pension scheme which is not a contracted-out scheme, or
ii
of a personal pension scheme which is not an appropriate scheme, F382...
F382iii
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
are able or willing to accept a transfer payment only in respect of a member’s rights other than his accrued rights to guaranteed minimum pensions, F196his accrued rights so far as attributable to service in contracted-out employment on or after the principal appointed day or his protected rights; and
b
the member has not required the trustees or managers of the scheme from which he is being transferred to use the portion of his cash equivalent which represents those accrued or protected rights in any of the ways specified in subsection (2) or, as the case may be, subsection (3) of section 95.
C43
Where subsection (2) applies, this section and sections 94, 95 and 97 are to be construed as conferring on the member an option only in respect of the balance of the cash equivalent to which the member would otherwise be entitled, after deduction of an amount sufficient for the trustees or managers of the scheme from which he is being transferred to meet their liability—
a
in the case of a transfer from an occupational pension scheme, in respect of the member’s and the member’s widow’s or, as the case may be, widower’s F197pensions, being guaranteed minimum pensions or pensions so far as attributable to service in contracted-out employment on or after the principal appointed day or the member’s protected rights; and
b
in the case of a transfer from a personal pension scheme, of the member’s protected rights.
F4134
Where a member of an occupational pension scheme or a personal pension scheme—
a
is entitled to give a notice under section 101F(1) to the trustees or managers of the scheme, or
b
would be entitled to do so, but for section 101G(1),
he may not, if the scheme so provides, make an application to them under section 95 unless he also gives them a notice under section 101F(1).
I1C4697 Calculation of cash equivalents.
1
Cash equivalents are to be calculated and verified in the prescribed manner.
2
Regulations may provide—
a
that in calculating cash equivalents F101except guaranteed cash equivalents account shall be taken—
i
of any surrender, commutation or forfeiture of the whole or part of a member’s pension which occurs before the trustees or managers of the scheme of which he is a member do what is needed to comply with what he requires under section 95;
ii
in a case where subsection (2) of section 96 applies, of the need to deduct an appropriate amount to provide for the liabilities mentioned in subsection (3) of that section;
F393aa
for a cash equivalent, including a guaranteed cash equivalent, to be reduced so as to take account of the extent (if any) to which an entitlement has arisen under the scheme to the present payment of the whole or any part of—
i
any pension; or
ii
any benefit in lieu of pension; and
b
that in prescribed circumstances a cash equivalent shall be increased or reduced.
3
Without prejudice to the generality of subsection (2), the circumstances that may be specified by virtue of paragraph (b) of that subsection include—
a
in the case of an occupational pension scheme, the length of time which elapses between the termination of a member’s pensionable service and his exercise of the option conferred by this Chapter or regulations made under it;
b
c
the state of the funding of the scheme.
F1033A
For the purposes of subsection (3), the “appropriate date”—
a
in the case of a salary related occupational pension scheme, is the guarantee date (within the meaning of section 93A), and
b
in any other case, is the date on which the trustees receive an application from the member under section 95.
4
Regulations under subsection (2) may specify as the amount by which a cash equivalent is to be reduced such an amount that a member has no right to receive anything.
I1C4698 Variation and loss of rights under s. 94.
1
Regulations may provide that a member of an occupational pension scheme F104other than a salary related scheme who continues in employment to which the scheme applies after his pensionable service in that employment terminates—
a
only acquires a right to the cash equivalent of such part of the benefits specified in section 94(1) as may be prescribed; or
b
acquires no right to a cash equivalent.
F1051A
Regulations may provide that a member of a salary related occupational pension scheme who continues in employment to which the scheme applies after his pensionable service in that employment terminates—
a
acquires a right to only part of his guaranteed cash equivalent, or
b
acquires no right to his guaranteed cash equivalent.
2
Regulations may provide for the purposes of subsection (1) F106or (1A) that in prescribed circumstances a number of employments (whether or not consecutive) shall be treated as a single employment.
3
Regulations may provide that where—
a
by virtue of regulations under subsection (1) or (2), a member of an occupational pension scheme F107other than a salary related scheme does not, on the termination of his pensionable service in an employment to which a scheme applies, acquire a right at the relevant date to the cash equivalent of the whole or a part of the benefits specified in section 94(1); F108andF108or
F108b
his employment terminates at least one year before normal pension age,
that right shall accrue to him on the date when that employment terminates and be valued accordingly.
F108aa
by virtue of regulations under subsection (1A) or (2), a member of a salary related occupational pension scheme does not, on such a termination, acquire a right to the whole or any part of his guaranteed cash equivalent,
and his employment terminates at least one year before normal pension age
4
In relation to any case to which regulations under subsection (3) apply, they may substitute—
a
a new definition of “the relevant date” for the definition in section 94(2); and
b
a new definition of “the last option date” for the definition in section 95(8).
5
6
A member of an occupational pension scheme or a personal pension scheme loses the right to any cash equivalent under this Chapter if the scheme is wound up.
7
A member of an occupational pension scheme also loses that right F453if—
F454a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
he fails to exercise the option conferred by section 95 on or before the last option date (within the meaning of subsection (7) of that section).
8
In this section
F416“relevant benefits” means any benefits not attributable (directly or indirectly) to a pension credit; and
“the relevant date” has the same meaning as in section 94(2).
I1C4699 Trustees’ duties after exercise of option.
1
Where—
a
a member has exercised the option conferred by section 95; and
b
the trustees or managers of the scheme have done what is needed to carry out what the member requires,
the trustees or managers shall be discharged from any obligation to provide benefits to which the cash equivalent related except, in such cases as are mentioned in section 96(2), to the extent that an obligation to provide such guaranteed minimum pensions or give effect to such protected rights continues to subsist.
2
Subject to the following provisions of this section, if the trustees or managers of a scheme receive an application under section 95, they shall do what is needed to carry out what the member requires—
F198a
in the case of a member of a salary related occupational pension scheme, within 6 months of the guarantee date, or (if earlier) by the date on which the member attains normal pension age,
b
in the case of a member of any other occupational pension scheme, within 6 months of the date on which they receive the application, or (if earlier) by the date on which the member attains normal pension age, or
c
in the case of a member of a personal pension scheme, within 6 months of the date on which they receive the application.
3
If—
a
disciplinary proceedings or proceedings before a court have been begun against a member of an occupational pension scheme at any time before the expiry of the period of 12 months beginning with the termination date; and
b
it appears to the trustees or managers of the scheme that the proceedings may lead to the whole or part of the pension or benefit in lieu of a pension payable to the member or his widow being forfeited; and
c
the date before which they would (apart from this subsection) be obliged under subsection (2) to carry out what the member requires is earlier than the end of the period of 3 months after the conclusion of the disciplinary or court proceedings (including any proceedings on appeal),
then, subject to the following provisions of this section, they must instead do so before the end of that period of 3 months.
F1993A
In this section, “guarantee date” has the same meaning as in section 93A.
4
F109...
F109
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F109
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F109
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F109The Regulatory Authority may, in prescribed circumstances, grant an extension of the period within which the trustees or managers of the scheme are obliged to do what is needed to carry out what a member of the scheme requires.
F109...
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1094A
Regulations may make provision in relation to applications for extensions under subsection (4).
6
If the F200Regulatory Authority are satisfied—
a
that there has been a relevant change of circumstances since they granted an extension, or
b
that they granted an extension in ignorance of a material fact or on the basis of a mistake as to a material fact,
they may direct that the extension be shortened or revoke it.
F1107
Where the trustees or managers of an occupational pension scheme have not done what is needed to carry out what a member of the scheme requires within six months of the date mentioned in paragraph (a) or (b) of subsection (2)—
a
they must, except in prescribed cases, notify the Regulatory Authority of that fact within the prescribed period, and
b
section 10 of the Pensions Act 1995 (power of the Regulatory Authority to impose civil penalties) shall apply to any trustee or manager who has failed to take all such steps as are reasonable to ensure that it was so done.
8
Regulations may provide that in prescribed circumstances subsection (7) shall not apply in relation to an occupational pension scheme.
I1C46100 Withdrawal of applications.
1
Subject to F417subsections (2) and (2A), a member of a scheme may withdraw an application under section 95 by giving the trustees or managers of the scheme notice in writing that he no longer wishes them to do what is needed to carry out what he previously required.
2
Such a notice shall be of no effect if it is given to the trustees or managers at a time when, in order to comply with what the member previously required, they have already entered into an agreement with a third party to use the whole or part of the member’s cash equivalent in a way specified in subsection (2) or, as the case may be, subsection (3) of section 95.
F4182A
If the making of the application depended on the giving of a notice under section 101F(1), the application may only be withdrawn if the notice is also withdrawn.
3
A member who withdraws an application may make another.
4
A notice to the trustees or managers of a scheme under this section is to be taken to have been given if it is delivered to them personally, or sent by post in a registered letter or by recorded delivery service.
I1C46101 Supplementary provisions.
In making any calculation for the purposes of this Chapter—
a
any charge or lien on, and
b
any set-off against,
the whole or part of a pension shall be disregarded.
F400Part IVA Requirements relating to pension credit benefit
Pt. 4A inserted (11.11.1999 for specified purposes, 1.12.2000 in so far as not already in force) by Welfare Reform and Pensions Act 1999 (c. 30), ss. 37, 89(5)(a); S.I. 2000/1047, art. 2(2)(d), Sch. Pt. 4
Chapter I Pension credit benefit under occupational schemes
101A Scope of Chapter I.
1
This Chapter applies to any occupational pension scheme whose resources are derived in whole or part from—
a
payments to which subsection (2) applies made or to be made by one or more employers of earners to whom the scheme applies, or
b
such other payments by the earner or his employer, or both, as may be prescribed for different categories of scheme.
2
This subsection applies to payments—
a
under an actual or contingent legal obligation, or
b
in the exercise of a power conferred, or the discharge of a duty imposed, on a Minister of the Crown, government department or any other person, being a power or duty which extends to the disbursement or allocation of public money.
101B Interpretation.
In this Chapter—
“scheme” means an occupational pension scheme to which this Chapter applies;
“pension credit rights” means rights to future benefits under a scheme which are attributable (directly or indirectly) to a pension credit;
“pension credit benefit”, in relation to a scheme, means the benefits payable under the scheme to or in respect of a person by virtue of rights under the scheme attributable (directly or indirectly) to a pension credit;
“normal benefit age”, in relation to a scheme, means the earliest age at which a person who has pension credit rights under the scheme is entitled to receive a pension by virtue of those rights (disregarding any scheme rule making special provision as to early payment of pension on grounds of ill-health or otherwise).
101C Basic principle as to pension credit benefit.
1
Normal benefit age under a scheme must be between 60 and 65.
2
A scheme must not provide for payment of pension credit benefit in the form of a lump sum at any time before normal benefit age, except in such circumstances as may be prescribed.
101D Form of pension credit benefit and its alternatives.
1
Subject to subsection (2) and section 101E, a person’s pension credit benefit under a scheme must be—
a
payable directly out of the resources of the scheme, or
b
assured to him by such means as may be prescribed.
2
Subject to subsections (3) and (4), a scheme may, instead of providing a person’s pension credit benefit, provide—
a
for his pension credit rights under the scheme to be transferred to another occupational pension scheme or a personal pension scheme with a view to acquiring rights for him under the rules of the scheme, or
b
for such alternatives to pension credit benefit as may be prescribed.
3
The option conferred by subsection (2)(a) is additional to any obligation imposed by Chapter II of this Part.
4
The alternatives specified in subsection (2)(a) and (b) may only be by way of complete or partial substitute for pension credit benefit—
a
if the person entitled to the benefit consents, or
b
in such other cases as may be prescribed.
101E Discharge of liability where pension credit or alternative benefits secured by insurance policies or annuity contracts.
1
A transaction to which section 19 applies discharges the trustees or managers of a scheme from their liability to provide pension credit benefit or any alternative to pension credit benefit for or in respect of a member of the scheme if and to the extent that—
a
it results in pension credit benefit, or any alternative to pension credit benefit, for or in respect of the member being appropriately secured (within the meaning of that section),
b
the transaction is entered into with the consent of the member or, if the member has died, of the member’s widow or widower, and
c
such requirements as may be prescribed are met.
2
Regulations may provide that subsection (1)(b) shall not apply in prescribed circumstances.
C81Chapter II Transfer values
Pt. 4A Ch. 2 applied (with retrospective effect from 1.12.2000) by The National Health Service Superannuation Scheme (Scotland) (Additional Voluntary Contributions) Regulations 1998 (S.I. 1998/1451), Sch. 2 para. 5 (as inserted by S.S.I. 2001/465, reg. 1(2), sch. 2 para. 6)
101F Power to give transfer notice.
1
An eligible member of a qualifying scheme may by notice in writing require the trustees or managers of the scheme to use an amount equal to the cash equivalent of his pension credit benefit for such one or more of the authorised purposes as he may specify in the notice.
2
In the case of a member of an occupational pension scheme, the authorised purposes are—
a
to acquire rights allowed under the rules of an occupational pension scheme, or personal pension scheme, which is an eligible scheme,
b
to purchase from one or more F477insurers such as are mentioned in section 19(4)(a), chosen by the member and willing to accept payment on account of the member from the trustees or managers, one or more annuities which satisfy the prescribed requirements, and
c
in such circumstances as may be prescribed, to subscribe to other pension arrangements which satisfy prescribed requirements.
3
In the case of a member of a personal pension scheme, the authorised purposes are—
a
to acquire rights allowed under the rules of an occupational pension scheme, or personal pension scheme, which is an eligible scheme, and
b
in such circumstances as may be prescribed, to subscribe to other pension arrangements which satisfy prescribed requirements.
4
The cash equivalent for the purposes of subsection (1) shall—
a
in the case of a salary related occupational pension scheme, be taken to be the amount shown in the relevant statement under section 101H, and
b
in any other case, be determined by reference to the date the notice under that subsection is given.
5
The requirements which may be prescribed under subsection (2) or (3) include, in particular, requirements of the Inland Revenue.
6
In subsections (2) and (3), references to an eligible scheme are to a scheme—
a
the trustees or managers of which are able and willing to accept payment in respect of the member’s pension credit rights, and
b
which satisfies the prescribed requirements.
7
In this Chapter, “transfer notice” means a notice under subsection (1).
101G Restrictions on power to give transfer notice.
1
In the case of a salary related occupational pension scheme, the power to give a transfer notice may only be exercised if—
a
the member has been provided with a statement under section 101H, and
b
not more than 3 months have passed since the date by reference to which the amount shown in the statement is determined.
2
The power to give a transfer notice may not be exercised in the case of an occupational pension scheme if—
a
there is less than a year to go until the member reaches normal benefit age, or
b
the pension to which the member is entitled by virtue of his pension credit rights, or benefit in lieu of that pension, or any part of it has become payable.
3
Where an eligible member of a qualifying scheme—
a
is entitled to make an application under section 95 to the trustees or managers of the scheme, or
b
would be entitled to do so, but for the fact that he has not received a statement under section 93A in respect of which the guarantee date is sufficiently recent,
he may not, if the scheme so provides, exercise the power to give them a transfer notice unless he also makes an application to them under section 95.
4
The power to give a transfer notice may not be exercised if a previous transfer notice given by the member to the trustees or managers of the scheme is outstanding.
101H Salary related schemes: statements of entitlement.
1
The trustees or managers of a qualifying scheme which is a salary related occupational pension scheme shall, on the application of an eligible member, provide him with a written statement of the amount of the cash equivalent of his pension credit benefit under the scheme.
2
For the purposes of subsection (1), the amount of the cash equivalent shall be determined by reference to a date falling within—
a
the prescribed period beginning with the date of the application, and
b
the prescribed period ending with the date on which the statement under that subsection is provided to the applicant.
3
Regulations may make provision in relation to applications under subsection (1) and may, in particular, restrict the making of successive applications.
4
If trustees or managers to whom subsection (1) applies fail to perform an obligation under that subsection, section 10 of the Pensions Act 1995 (power of the Regulatory Authority to impose civil penalties) shall apply to any trustee or manager who has failed to take all such steps as are reasonable to secure that the obligation was performed.
101I Calculation of cash equivalents.
Cash equivalents for the purposes of this Chapter shall be calculated and verified in the prescribed manner.
101J Time for compliance with transfer notice.
1
Trustees or managers of a qualifying scheme who receive a transfer notice shall comply with the notice—
a
in the case of an occupational pension scheme, within 6 months of the valuation date or, if earlier, by the date on which the member to whom the notice relates reaches normal benefit age, and
b
in the case of a personal pension scheme, within 6 months of the date on which they receive the notice.
2
The Regulatory Authority may, in prescribed circumstances, extend the period for complying with the notice.
3
If the Regulatory Authority are satisfied—
a
that there has been a relevant change of circumstances since they granted an extension under subsection (2), or
b
that they granted an extension under that subsection in ignorance of a material fact or on the basis of a mistake as to a material fact,
they may revoke or reduce the extension.
4
Where the trustees or managers of an occupational pension scheme have failed to comply with a transfer notice before the end of the period for compliance—
a
they shall, except in prescribed cases, notify the Regulatory Authority of that fact within the prescribed period, and
b
section 10 of the Pensions Act 1995 (power of the Regulatory Authority to impose civil penalties) shall apply to any trustee or manager who has failed to take all such steps as are reasonable to ensure that the notice was complied with before the end of the period for compliance.
5
If trustees or managers to whom subsection (4)(a) applies fail to perform the obligation imposed by that provision, section 10 of the Pensions Act 1995 shall apply to any trustee or manager who has failed to take all such steps as are reasonable to ensure that the obligation was performed.
6
Regulations may—
a
make provision in relation to applications under subsection (2), and
b
provide that subsection (4) shall not apply in prescribed circumstances.
7
In this section, “valuation date”, in relation to a transfer notice given to the trustees or managers of an occupational pension scheme, means—
a
in the case of a salary related scheme, the date by reference to which the amount shown in the relevant statement under section 101H is determined, and
b
in the case of any other scheme, the date the notice is given.
101K Withdrawal of transfer notice.
1
Subject to subsections (2) and (3), a person who has given a transfer notice may withdraw it by giving the trustees or managers to whom it was given notice in writing that he no longer requires them to comply with it.
2
A transfer notice may not be withdrawn if the trustees or managers have already entered into an agreement with a third party to use the whole or part of the amount they are required to use in accordance with the notice.
3
If the giving of a transfer notice depended on the making of an application under section 95, the notice may only be withdrawn if the application is also withdrawn.
101L Variation of the amount required to be used.
1
Regulations may make provision for the amount required to be used under section 101F(1) to be increased or reduced in prescribed circumstances.
2
Without prejudice to the generality of subsection (1), the circumstances which may be prescribed include—
a
failure by the trustees or managers of a qualifying scheme to comply with a notice under section 101F(1) within 6 months of the date by reference to which the amount of the cash equivalent falls to be determined, and
b
the state of funding of a qualifying scheme.
3
Regulations under subsection (1) may have the effect of extinguishing an obligation under section 101F(1).
101M Effect of transfer on trustees’ duties.
Compliance with a transfer notice shall have effect to discharge the trustees or managers of a qualifying scheme from any obligation to provide the pension credit benefit of the eligible member who gave the notice.
101N Matters to be disregarded in calculations.
In making any calculation for the purposes of this Chapter—
a
any charge or lien on, and
b
any set-off against,
the whole or part of a pension shall be disregarded.
101O Service of notices.
A notice under section 101F(1) or 101K(1) shall be taken to have been given if it is delivered to the trustees or managers personally or sent by post in a registered letter or by recorded delivery service.
101P Interpretation of Chapter II.
1
In this Chapter—
“eligible member”, in relation to a qualifying scheme, means a member who has pension credit rights under the scheme;
“normal benefit age”, in relation to an eligible member of a qualifying scheme, means the earliest age at which the member is entitled to receive a pension by virtue of his pension credit rights under the scheme (disregarding any scheme rule making special provision as to early payment of pension on grounds of ill-health or otherwise);
“pension credit benefit”, in relation to an eligible member of a qualifying scheme, means the benefits payable under the scheme to or in respect of the member by virtue of rights under the scheme attributable (directly or indirectly) to a pension credit;
“pension credit rights”, in relation to a qualifying scheme, means rights to future benefits under the scheme which are attributable (directly or indirectly) to a pension credit;
“qualifying scheme” means a funded occupational pension scheme and a personal pension scheme;
“transfer notice” has the meaning given by section 101F(7).
2
For the purposes of this Chapter, an occupational pension scheme is salary related if—
a
it is not a money purchase scheme, and
b
it does not fall within a prescribed class.
3
In this Chapter, references to the relevant statement under section 101H, in relation to a transfer notice given to the trustees or managers of a salary related occupational pension scheme, are to the statement under that section on which the giving of the notice depended.
4
For the purposes of this section, an occupational pension scheme is funded if it meets its liabilities out of a fund accumulated for the purpose during the life of the scheme.
101Q Power to modify Chapter II in relation to hybrid schemes.
Regulations may apply this Chapter with prescribed modifications to occupational pension schemes—
a
which are not money purchase schemes, but
b
where some of the benefits that may be provided are money purchase benefits.
Part V Annual Increases of Pensions in Payment
Chapter I Pensions under Final Salary Schemes etc.
F114I1102 Scope of Chapter I: annual increase of certain occupational pensions.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F114I1103 Annual increase of later service component.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F114I1104 Annual increase of earlier service component where scheme is in surplus.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F114I1105 Proportional increase where first period is less than 12 months.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F114I1106 Restriction on increase where member is under 55.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F114I1107 Application of Chapter I to pensions not attributable to pensionable service.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I1108 No payments to employers from non-complying schemes.
F1141
No payment shall be made out of the resources of a qualifying scheme which is constituted by trust deed to or for a person who is or has been the employer of persons in the description or category of employment to which the scheme relates until such time as provision has been made by the scheme for every pension which commences or has commenced under it to be increased as mentioned in section 102(2)(b).
2
Nothing in subsection (1) applies in relation to payments made to or for a person by virtue of his or any other person’s membership of the scheme in question.
Chapter II Guaranteed minimum pensions
I1C61109 Annual increase of guaranteed minimum pensions.
1
The Secretary of State shall in each tax year review the general level of prices in Great Britain for the period of 12 months commencing at the end of the period last reviewed under this section.
2
Where it appears to the Secretary of State that that level has increased at the end of the period under review, he shall lay before Parliament the draft of an order specifying a percentage by which there is to be an increase of the rate of that part of guaranteed minimum pensions which is attributable to earnings factors for F44the tax years in the relevant period for—
a
earners who have attained pensionable age; and
b
widows and widowers.
3
The percentage shall be—
a
the percentage by which that level has increased at the end of the period under review; or
b
3 per cent.,
whichever is less.
F453A
The relevant period is the period—
a
beginning with the tax year 1988-89, and
b
ending with the last tax year that begins before the principal appointed day for the purposes of Part III of the Pensions Act 1995
4
If a draft order laid before Parliament in pursuance of this section is approved by a resolution of each House, the Secretary of State shall make the order in the form of the draft.
5
An order under this section shall be so framed as to bring the alterations to which it relates into force on the first day of the next tax year after that in which the order is made.
6
Where the benefits mentioned in section 46(1) to (7) are not increased on the day on which an order under this section takes effect, the order shall be treated for the purposes of that section as not taking effect until the day on which those benefits are next increased.
I1110 Requirement as to resources for annual increase of guaranteed minimum pensions.
1
Except as permitted by F202section 53 of the Pensions Act 1995, the trustees or managers of a scheme may not make an increase in a person’s pension which is required by virtue of section 109 out of money which would otherwise fall to be used for the payment of benefits under the scheme to or in respect of that person unless—
a
the payment is to an earner in respect of the tax year in which he attains pensionable age and the increase is the one required to be made in the next tax year; or
b
the payment is to a person as the widow or widower of an earner who died before attaining pensionable age and is in respect of the tax year in which the person became a widow or widower, and the increase is the one required to be made in the next tax year.
F2012
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2013
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2014
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part VI Further Requirements for Protection of Scheme Members
I1111 Voluntary contributions.
1
Except in such cases as may be prescribed, and except so far as is necessary to ensure that an occupational pension scheme or a personal pension scheme has, or may be expected to qualify for, tax-exemption or tax-approval, the rules of the scheme—
a
must not prohibit, or allow any person to prohibit, the payment by a member of voluntary contributions;
b
must not impose, or allow any person to impose, any upper or lower limit on the payment by a member of voluntary contributions;
c
must secure that any voluntary contributions paid by a member are to be used by the trustees or managers of the scheme to provide additional benefits for or in respect of him; and
d
must secure that the value of the additional benefits is reasonable, having regard—
i
to the amount of the voluntary contributions; and
ii
to the value of the other benefits under the scheme.
2
The requirements specified in this section are in this Act referred to as “the voluntary contributions requirements”.
3
This section does not apply in relation to any pension payable under the M28Judicial Pensions and Retirement Act 1993, the M29Judicial Pensions Act 1981 or the M30Sheriffs’ Pensions (Scotland) Act 1961; and accordingly none of the provisions of this Act shall, in so far as it has effect in relation to the voluntary contributions requirements, apply to any such pension.
111AF461Monitoring of employers’ payments to personal pension schemes.
1
This section applies where—
a
an employee is a member of a personal pension scheme; and
b
direct payment arrangements exist between the employee and his employer.
2
In this section “direct payment arrangements” means arrangements under which contributions fall to be paid by or on behalf of the employer towards the scheme—
a
on the employer’s own account (but in respect of the employee); or
b
on behalf of the employee out of deductions from the employee’s earnings.
3
The employer must secure that there is prepared, maintained and from time to time revised a record of the direct payment arrangements which complies with subsection (4).
4
The record must—
a
show the rates and due dates of contributions payable under the direct payment arrangements, and
b
satisfy prescribed requirements.
5
The employer must, within the prescribed period after the preparation or any revision of the record, send a copy of the record or (as the case may be) of the revised record to the trustees or managers of the scheme.
6
Except in prescribed circumstances, the trustees or managers of the scheme must, where any contribution shown by the record to be payable under the direct payment arrangements has not been paid on or before its due date, give notice of that fact, within the prescribed period, to the Regulatory Authority and the employee.
7
The trustees or managers of the scheme must before the end of prescribed intervals send the employee a statement setting out the amounts and dates of the payments made under the direct payment arrangements during a prescribed period.
8
If—
a
the employer fails to take all such steps as are reasonable to secure compliance with subsection (3) or (5), or
b
a contribution payable under the direct payment arrangements is not paid to the trustees or managers of the scheme on or before its due date,
section 10 of the Pensions Act 1995 (power of the Regulatory Authority to impose civil penalties) applies to the employer.
9
If subsection (6) or (7) is not complied with, section 10 of the Pensions Act 1995 applies to any trustee or manager of the scheme who has failed to take all such steps as are reasonable to secure compliance.
10
If—
a
subsection (6) or (7) is not complied with, and
b
the scheme—
i
is established under a trust, and
ii
is or has been registered under section 2 of the Welfare Reform and Pensions Act 1999 (stakeholder schemes),
section 3 of the Pensions Act 1995 (power of the Regulatory Authority to remove trustees) applies to any trustee of the scheme who has failed to take all such steps as are reasonable to secure compliance.
11
A person shall not be required by virtue of subsection (8)(b) above to pay a penalty under section 10 of the Pensions Act 1995 in respect of a failure if in respect of that failure he has been—
a
required to pay a penalty under that section by virtue of section 3(7) of the Welfare Reform and Pensions Act 1999 (failures in respect of stakeholder pensions), or
b
convicted of an offence under subsection (12) below.
12
A person is guilty of an offence if he is knowingly concerned in the fraudulent evasion of the direct payment arrangements so far as they are arrangements for the payment by him or any other person of any such contribution towards the scheme as is mentioned in subsection (2)(b).
13
A person guilty of an offence under subsection (12) is liable—
a
on summary conviction, to a fine not exceeding the statutory maximum; and
b
on conviction on indictment, to imprisonment for a term not exceeding seven years or a fine or both.
14
No prosecution shall be brought against the Crown for an offence under subsection (12), but that subsection applies to persons in the public service of the Crown as to other persons.
15
In this section “due date”, in relation to a contribution payable under the direct payment arrangements, means—
a
if the contribution falls to be paid on the employer’s own account, the latest day under the arrangements for paying it;
b
if the contribution falls to be paid on behalf of the employee, the last day of a prescribed period.
16
Regulations may provide for this section to apply with such modifications as may be prescribed in a case where—
a
the direct payment arrangements give effect to a requirement arising under subsection (5) of section 3 of the Welfare Reform and Pensions Act 1999 (deduction and payment of employee’s contributions to stakeholder scheme), and
b
in accordance with regulations under that subsection, that requirement is for the employer to pay contributions to a person prescribed by such regulations (instead of to the trustees or managers of the scheme).
17
Nothing in this section shall be taken as varying the provisions of the direct payment arrangements or as affecting their enforceability.
111B Obtaining information for purposes of section 111A and corresponding Northern Ireland legislation.
1
Any person appearing to the Regulatory Authority to be a person who holds, or is likely to hold, information which is relevant to the issue—
a
whether any provision made by or under section 111A is being, or has been, complied with by an employer or the trustees or managers of a personal pension scheme,
b
whether, in the case of any direct payment arrangements existing between an employee and his employer, there has been such a failure to pay a contribution as is mentioned in subsection (8)(b) of that section, or
c
whether an offence has been committed under subsection (12) of that section in relation to any such arrangements,
must, if required to do so by the Regulatory Authority by notice in writing, produce any document which is so relevant.
2
To comply with subsection (1) the document must be produced in such a manner, at such a place and within such a period as may be specified in the notice.
3
An inspector may, for the purposes of investigating any of the matters set out in subsection (1)(a) to (c), at any reasonable time enter premises liable to inspection and, while there—
a
may make such examination and inquiry as may be necessary for such purposes,
b
may require any person on the premises to produce for his inspection, or secure the production for his inspection of, any document relevant—
i
to compliance with any provision made by or under section 111A, or with the direct payment arrangements, or
ii
to the issue whether an offence has been committed under subsection (12) of that section in relation to those arrangements, and
c
may, as to any matter so relevant, examine, or require to be examined, either alone or in the presence of another person, any person on the premises whom he has reasonable cause to believe to be able to give information relevant to that matter.
4
An inspector applying for admission to any premises in pursuance of subsection (3) must, if so required, produce his certificate of appointment.
5
For the purposes of subsection (3) premises are liable to inspection if the inspector has reasonable grounds to believe that—
a
employees of the employer are employed there,
b
documents relevant to the administration of—
i
the employer’s business,
ii
the direct payment arrangements, or
iii
the scheme to which those arrangements relate,
are kept there, or
c
either of the following is being carried out there, namely—
i
the administration of the employer’s business, the arrangements or the scheme, or
ii
work connected with the administration of the employer’s business, the arrangements or the scheme,
unless the premises are a private dwelling-house not used by, or by permission of, the occupier for the purposes of a trade or business.
6
Section 100 of the Pensions Act 1995 (warrants) shall have effect as if references to section 98(1) or 99(1)(b) of that Act included references to subsection (1) or (3)(b).
7
Sections 101 to 103 of that Act (penalties, savings and reports) shall have effect as if references which are or include references to section 98 or 99 of that Act included references to this section.
8
In this section—
“direct payment arrangements” has the same meaning as in section 111A;
“document” includes information recorded in any form, and any reference to production of a document, in relation to information recorded otherwise than in legible form, is to producing a copy of the information in legible form;
“inspector” means a person appointed by the Regulatory Authority as an inspector.
9
References in this section to, or to any provision of, section 111A include references to corresponding provisions of Northern Ireland legislation; and in this section as it has effect in relation to those corresponding provisions, “employee” and “employer” have the meaning they have for the purposes of those provisions.
F203I1112 Restrictions on investment of scheme’s resources in employer-related assets.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I1113 Disclosure of information about schemes to members etc.
1
The Secretary of State may by regulations specify requirements to be complied with in the case of an occupational pension scheme or a personal pension scheme with respect to keeping the persons mentioned in subsection (2) informed—
a
of its constitution;
b
of its administration and finances;
c
of the rights and obligations that arise or may arise under it;
F455ca
of the pensions and other benefits an entitlement to which would be likely to accrue to the member, or be capable of being secured by him, in respect of the rights that may arise under it; and
d
of any other matters that appear to the Secretary of State to be relevant to occupational pension schemes or personal pension schemes in general or to schemes of a description to which the scheme in question belongs.
2
The persons referred to in subsection (1) are—
a
members and, in the case of an occupational pension scheme, prospective members of the scheme;
b
spouses of members and, in the case of an occupational pension scheme, of prospective members;
c
persons within the application of the scheme and qualifying or prospectively qualifying for its benefits;
d
in the case of an occupational pension scheme, independent trade unions recognised to any extent for the purposes of collective bargaining in relation to members and to prospective members of the scheme.
3
Without prejudice to the generality of section 182(2), the regulations may distinguish between—
a
cases in which information is to be given as of course; and
b
cases in which information need only be given on request or in other prescribed circumstances.
F4563A
The regulations may provide for the information that must be given to be determined, in whole or part, by reference to guidance which—
a
is prepared and from time to time revised by a prescribed body; and
b
is for the time being approved by the Secretary of State.
3B
The regulations may, in relation to cases where a scheme is being wound up, contain—
a
provision conferring power on the Regulatory Authority, at times before the period expires, to extend any period specified in the regulations as the period within which a requirement imposed by the regulations must be complied with; and
b
provision as to the contents of any application for the exercise of such a power and as to the form and manner in which, and the time within which, any such application must be made.
4
The regulations shall make provision for referring to an industrial tribunal any question whether an organisation is such a trade union as is mentioned in subsection (2)(d).
I1114 Additional documents for members etc. and Registrar.
F2041
Without prejudice to the generality of the power conferred on him by section 113(1), the Secretary of State may by regulations require the trustees of an occupational pension scheme or, if there are no trustees, the managers—
a
to obtain at such times as may be prescribed documents to which this subsection applies; and
b
to make copies of them available to the persons specified in section 113(2).
2
In relation to any scheme, the documents to which subsection (1) applies are—
a
its audited accounts;
b
an auditor’s statement about contributions under it;
c
an actuarial valuation of its assets in relation to its liabilities; and
d
an actuary’s statement concerning such aspects of any such valuation as may be prescribed.
3
The Secretary of State may by regulations—
a
prescribe the persons who may act as auditors or actuaries for the purposes of this section; or
b
provide that the persons who may so act shall be—
i
persons with prescribed professional qualifications or experience; or
ii
persons approved by the Secretary of State.
4
The Secretary of State may by regulations make provision as to the form and content of any such document as is mentioned in subsection (2).
I1115 Powers as respects failure to comply with information requirements.
1
If the trustees or managers of an occupational pension scheme or a personal pension scheme, having made default in complying with regulations under section 113 or 114(1)(b), fail to make good the default within 14 days after the service on them of a notice requiring them to do so, an order may be made under this subsection.
2
The Secretary of State may by regulations specify forms for notices under subsection (1).
3
An order under subsection (1) is an order directing the trustees or managers to make good the default within such time as may be specified in the order.
4
The power to make such an order shall be exercisable by the appropriate court on the application of any person mentioned in subsection (5).
5
The persons referred to in subsection (4) are—
a
the Secretary of State;
b
any person authorised by the Secretary of State to make an application under this section; and
c
any aggrieved person.
6
In this section “the appropriate court” means—
a
in England and Wales, a county court; and
b
in Scotland, the sheriff.
7
An application to the sheriff shall be made by summary application.
8
An order under this section may provide that all costs (or, in Scotland, expenses) of and incidental to the application shall be borne personally by any of the trustees or managers of the scheme.
F205I1116 Regulations as to auditors.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I1117 Regulations as to form and content of advertisements.
Regulations may be made relating to the form and content of advertisements and such other material as may be prescribed issued by or on behalf of the trustees or managers of a personal or occupational pension scheme for the purposes of the scheme.
F16I1118 Equal access requirements.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part VII Insolvency of employers
Chapter I Independent trustees
F115I1119 Requirement for independent trustee where employer becomes insolvent etc.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F115I1120 Members’ powers to apply to court to enforce duty under s. 119.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F115I1121 Further provisions as to appointment and powers of independent trustees.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F115I1122 Duty of insolvency practitioner or official receiver to give information to scheme trustees.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chapter II Payment by Secretary of State of unpaid scheme contributions
I1C14123 Interpretation of Chapter II.
1
For the purposes of this Chapter, an employer shall be taken to be insolvent if, but only if, in England and Wales—
a
he has been adjudged bankrupt or has made a composition or arrangement with his creditors;
b
he has died and his estate falls to be administered in accordance with an order under section 421 of the M31Insolvency Act 1986; or
c
where the employer is a company—
i
a winding-up order or an administration order is made or a resolution for voluntary winding up is passed with respect to it,
ii
a receiver or manager of its undertaking is duly appointed,
iii
possession is taken, by or on behalf of the holders of any debentures secured by a floating charge, of any property of the company comprised in or subject to the charge, or
iv
a voluntary arrangement proposed for the purpose of Part I of the M31Insolvency Act 1986 is approved under that Part.
2
For the purposes of this Chapter, an employer shall be taken to be insolvent if, but only if, in Scotland—
a
sequestration of his estate is awarded or he executes a trust deed for his creditors or enters into a composition contract;
b
he has died and a judicial factor appointed under section 11A of the M32Judicial Factors (Scotland) Act 1889 is required by that section to divide his insolvent estate among his creditors; or
c
where the employer is a company—
i
a winding-up order or an administration order is made or a resolution for voluntary winding up is passed with respect to it,
ii
a receiver of its undertaking is duly appointed, or
iii
a voluntary arrangement proposed for the purpose of Part I of the M31Insolvency Act 1986 is approved under that Part.
3
In this Chapter—
“contract of employment”, “employee”, “employer” and “employment” and other expressions which are defined in F36the Employment Rights Act 1996 have the same meaning as in that Act;
“holiday pay” means—
- a
pay in respect of holiday actually taken; or
- b
any accrued holiday pay which under the employee’s contract of employment would in the ordinary course have become payable to him in respect of the period of a holiday if his employment with the employer had continued until he became entitled to a holiday;
- a
“occupational pension scheme” means any scheme or arrangement which provides or is capable of providing, in relation to employees in any description of employment, benefits, in the form of pensions or otherwise, payable to or in respect of any such employees on the termination of their employment or on their death or retirement.
4
For the purposes of this Chapter, the definition of “personal pension scheme” in section 1 has effect with the substitution for the words “employed earners” of the word “employees”.
5
Any reference in this Chapter to the resources of a scheme is a reference to the funds out of which the benefits provided by the scheme are from time to time payable.
I1124 Duty of Secretary of State to pay unpaid contributions to schemes.
1
If, on an application made to him in writing by the persons competent to act in respect of an occupational pension scheme or a personal pension scheme, the Secretary of State is satisfied—
a
that an employer has become insolvent; and
b
that at the time he did so there remained unpaid relevant contributions falling to be paid by him to the scheme,
then, subject to the provisions of this section and section 125, the Secretary of State shall pay into the resources of the scheme the sum which in his opinion is payable in respect of the unpaid relevant contributions.
2
In this section and section 125 “relevant contributions” means contributions falling to be paid by an employer to an occupational pension scheme or a personal pension scheme, either on his own account or on behalf of an employee; and for the purposes of this section a contribution shall not be treated as falling to be paid on behalf of an employee unless a sum equal to that amount has been deducted from the pay of the employee by way of a contribution from him.
3
F14Subject to subsection (3A), the sum payable under this section in respect of unpaid contributions of an employer on his own account to an occupational pension scheme or a personal pension scheme shall be the least of the following amounts—
a
the balance of relevant contributions remaining unpaid on the date when he became insolvent and payable by the employer on his own account to the scheme in respect of the 12 months immediately preceding that date;
b
the amount certified by an actuary to be necessary for the purpose of meeting the liability of the scheme on dissolution to pay the benefits provided by the scheme to or in respect of the employees of the employer;
c
an amount equal to 10 per cent. of the total amount of remuneration paid or payable to those employees in respect of the 12 months immediately preceding the date on which the employer became insolvent.
F133A
Where the scheme in question is a money purchase scheme, the sum payable under this section by virtue of subsection (3) shall be the lesser of the amounts mentioned in paragraphs (a) and (c) of that subsection
4
For the purposes of subsection (3)(c), “remuneration” includes holiday pay, statutory sick pay, statutory maternity pay under Part V of the M33Social Security Act 1986 or Part XII of the M34Social Security Contributions and Benefits Act 1992 F37and any payment such as is referred to in section 184(2) of the Employment Rights Act 1996.
5
Any sum payable under this section in respect of unpaid contributions on behalf of an employee shall not exceed the amount deducted from the pay of the employee in respect of the employee’s contributions to the scheme during the 12 months immediately preceding the date on which the employer became insolvent.
I1125 Certification of amounts payable under s. 124 by insolvency officers.
1
This section applies where one of the officers mentioned in subsection (2) (“the relevant officer”) has been or is required to be appointed in connection with an employer’s insolvency.
2
The officers referred to in subsection (1) are—
a
a trustee in bankruptcy;
b
a liquidator;
c
an administrator;
d
a receiver or manager; or
e
a trustee under a composition or arrangement between the employer and his creditors or under a trust deed for his creditors executed by the employer;
and in this subsection “trustee”, in relation to a composition or arrangement, includes the supervisor of a voluntary arrangement proposed for the purposes of and approved under Part I or VIII of the M35Insolvency Act 1986.
3
Subject to subsection (5), where this section applies the Secretary of State shall not make any payment under section 124 in respect of unpaid relevant contributions until he has received a statement from the relevant officer of the amount of relevant contributions which appear to have been unpaid on the date on which the employer became insolvent and to remain unpaid; and the relevant officer shall on request by the Secretary of State provide him as soon as reasonably practicable with such a statement.
4
Subject to subsection (5), an amount shall be taken to be payable, paid or deducted as mentioned in subsection (3)(a) or (c) or (5) of section 124 only if it is so certified by the relevant officer.
5
If the Secretary of State is satisfied—
a
that he does not require a statement under subsection (3) in order to determine the amount of relevant contributions that was unpaid on the date on which the employer became insolvent and remains unpaid, or
b
that he does not require a certificate under subsection (4) in order to determine the amounts payable, paid or deducted as mentioned in subsection (3)(a) or (c) or (5) of section 124,
he may make a payment under that section in respect of the contributions in question without having received such a statement or, as the case may be, such a certificate.
I1126 Complaint to industrial tribunal.
1
Any persons who are competent to act in respect of an occupational pension scheme or a personal pension scheme and who have applied for a payment to be made under section 124 into the resources of the scheme may present a complaint to an industrial tribunal that—
a
the Secretary of State has failed to make any such payment; or
b
any such payment made by him is less than the amount which should have been paid.
2
Such a complaint must be presented within the period of three months beginning with the date on which the decision of the Secretary of State on that application was communicated to the persons presenting it or, if that is not reasonably practicable, within such further period as is reasonable.
3
Where an industrial tribunal finds that the Secretary of State ought to make a payment under section 124, it shall make a declaration to that effect and shall also declare the amount of any such payment which it finds that the Secretary of State ought to make.
I1127 Transfer to Secretary of State of rights and remedies.
1
Where in pursuance of section 124 the Secretary of State makes any payment into the resources of an occupational pension scheme or a personal pension scheme in respect of any contributions to the scheme, any rights and remedies in respect of those contributions belonging to the persons competent to act in respect of the scheme shall, on the making of the payment, become rights and remedies of the Secretary of State.
2
Where the Secretary of State makes any such payment as is mentioned in subsection (1) and the sum (or any part of the sum) falling to be paid by the employer on account of the contributions in respect of which the payment is made constitutes—
a
b
then, without prejudice to the generality of subsection (1), there shall be included among the rights and remedies which become rights and remedies of the Secretary of State in accordance with that subsection any right arising under any such provision by reason of the status of that sum (or that part of it) as a preferential or preferred debt.
3
In computing for the purposes of any provision referred to in subsection (2)(a) or (b) the aggregate amount payable in priority to other creditors of the employer in respect of—
a
any claim of the Secretary of State to be so paid by virtue of subsection (2); and
b
any claim by the persons competent to act in respect of the scheme,
any claim falling within paragraph (a) shall be treated as if it were a claim of those persons; but the Secretary of State shall be entitled, as against those persons, to be so paid in respect of any such claim of his (up to the full amount of the claim) before any payment is made to them in respect of any claim falling within paragraph (b).
Chapter III Priority in bankruptcy
I1128 Priority in bankruptcy etc.
Schedule 4 shall have effect for the purposes of paragraph 8 of Schedule 6 to the M40Insolvency Act 1986 and paragraph 4 of Schedule 3 to the M41Bankruptcy (Scotland) Act 1985 (by virtue of which sums to which Schedule 4 to this Act applies are preferential or, as the case may be, preferred debts in cases of insolvency).
Part VIII Relationship between requirements and scheme rules
I1129 Overriding requirements.
1
Subject to subsection (2), the provisions of Chapters II, III and IV of Part IV, F419Chapters I and II of Part IVA,F206... section 110(1), F206... and any regulations made F206... under section 113 or 114 F206... override any provision of a scheme to which they apply to the extent that it conflicts with them.
2
3
In subsection (2) “protected provision” means—
F208a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
any provision of a scheme to the extent that it deals with priorities on a winding up;
c
any provision of a scheme which is included in it for the purpose of effecting a transfer of rights or liabilities authorised by regulations under section 20(1);
d
any provision of a scheme to the extent that it deals with commutation, suspension or forfeiture of the whole or part of a pension; and
e
any provision of a scheme whereby, as respects so much of a widow’s or widower’s pension as exceeds the guaranteed minimum pension—
i
no pension or a pension at a reduced rate is payable if the earner and the widow or widower married not more than six months before the earner’s death;
ii
the whole or any part of the pension is not paid to the widow or widower, but instead comparable benefits are provided for one or more dependants of the deceased earner; or
iii
no pension, or a pension at a reduced rate, is payable to the widow or widower (or, where a provision such as is mentioned in sub-paragraph (ii) operates, to another dependant of the deceased earner) who was more than ten years younger than the deceased earner.
4
For the purposes of the application of Chapter II of Part IV to schemes which are not contracted-out, subsection (3) shall have effect with the omission—
a
from paragraph (c), of the words from “authorised” to the end; and
b
from paragraph (e), of the words from “as respects” to “guaranteed minimum pension”.
I1130 Extra-statutory benefits.
It is hereby declared that—
a
nothing in Part III precludes an occupational pension scheme from providing benefits that are more favourable than those required for contracting-out purposes and, in particular, nothing in section 16(3) is to be taken as preventing the scheme from providing increases above the alternative minima there mentioned; and
b
nothing in the provisions of Chapter II or IV of Part IV precludes a scheme from being framed or managed more favourably to beneficiaries than is called for by those provisions.
I1131 Relationship of preservation requirements and scheme rules.
It is hereby declared that nothing in Chapter I of Part IV—
a
applies with direct effect to any scheme, or to the rights or liabilities of any person in, under or by virtue of a scheme; or
b
precludes a scheme from being so framed as to provide benefits on any ampler scale, or (subject to any express provision made in that Chapter) payable at any earlier time or otherwise more favourable to beneficiaries, than is called for by the preservation requirements.
I1132 Duty to bring schemes into conformity with indirectly-applying requirements.
Where the rules of an occupational pension scheme to which the preservation requirements,F17... or the voluntary contributions requirements apply or the rules of a personal pension scheme to which the voluntary contributions requirements apply do not comply with those requirements it shall be the responsibility of—
a
the trustees and managers of the scheme; or
b
in the case of a public service pension scheme, 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 rules of the scheme into conformity with those requirements.
F116I1133 Advice of the Board as to conformity of schemes with requirements.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F116I1134 Determination of questions whether schemes conform with requirements.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F116I1135 Persons competent to make applications under s. 134.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part IX Modification and winding up of schemes
Modification
I1136 Applications to the Board to modify schemes (other than public service schemes).
F1171
On an application made to them in respect of an occupational pension scheme or a personal pension scheme by persons competent to make such an application, the Board may make an order—
a
authorising the modification of the scheme with a view to achieving—
i
any one or more of the purposes specified in subsection (2); or
ii
any one or more of such other purposes as may be prescribed; or
b
modifying the scheme with a view to achieving any one or more of those purposes.
2
The purposes referred to in subsection (1)(a)(i) are—
a
to enable the scheme to provide for the transfer of accrued rights (including any transfer credits allowed under the scheme) to another scheme (whether an occupational or personal pension scheme) with a view to the acquisition, for those whose rights are transferred, of rights under the other scheme in connection with change of employment or otherwise, and for the allowance of transfer credits;
b
to enable the scheme to be one to which section 163 applies or to have included in or removed from it provisions designed to avoid the effect of the rules of law relating to perpetuities;
c
without prejudice to section 139(2), to comply with the voluntary contributions requirements;
d
to enable the trustees or managers of the scheme, or others concerned with or having rights under it, to enter into alternative arrangements having regard to any provision of this Act, or of any other Act (passed or to be passed) amending or replacing any such provision or making provision for similar purposes; or
e
in the case of an occupational pension scheme only, to enable the scheme—
i
to be so treated that an employment to which it applies may be contracted-out employment by reference to it;
ii
to qualify for the approval of the Inland Revenue for the purposes of Chapter I of Part XIV of the M42Income and Corporation Taxes Act 1988 or to provide benefits enhanced up to the limits suitable in a scheme for which such approval is sought;
iii
to provide for accrued rights to benefit (whether in payment or not), so far as payable out of the resources of the scheme, to be surrendered by beneficiaries (at their option and not otherwise, so long as the scheme remains in force and is not being, or to be, wound up) in exchange for other rights assured by means of one or more policies of insurance or annuity contracts, or by other means; or
iv
without prejudice to section 139(2), to comply with the preservation requirements F18....
3
An order under subsection (1)(a)—
a
shall be framed so as to confer the power of modification on such persons as the Board think proper (who may include persons who were not parties to the application made to the Board); and
b
shall include such directions as the Board think appropriate, having regard to the purposes of the order, indicating the modifications which they consider to be called for.
I1137 Persons competent to make applications under s. 136.
F117The persons competent to make an application under section 136(1) 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
in the case of an occupational pension scheme only, any person who is an employer of persons in service in an employment to which the scheme applies; and
d
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 such an application in respect of a scheme of that category.
I1138 Further provisions concerning the Board’s powers under s. 136.
F1171
The Board shall not entertain an application for an order by them under section 136 unless they are satisfied that the purposes of the application—
a
cannot be achieved otherwise than by means of such an order; or
b
can only be achieved in accordance with a procedure which—
i
is liable to be unduly complex or protracted, or
ii
involves the obtaining of consents which cannot be obtained, or can only be obtained with undue delay or difficulty.
2
Subject to subsection (1), the Board may on such an application make (with the consent of the applicants) any one or more such orders as are specified in section 136(1) and may exercise any of their powers to make such orders from time to time.
3
The extent of those powers is not limited, in relation to any purposes for which they are exercisable, to the minimum necessary to achieve those purposes.
4
The Board shall not make an order under section 136(1) unless they are satisfied that it is reasonable in all the circumstances to make it.
5
The Board shall not make any such order under that section as would, or might in their opinion, result in any existing or prospective entitlement of a member of the scheme, in respect of a period before the coming into force of the order or of any modification which the order authorises, being diminished or curtailed without his consent, unless they are satisfied that it is in the interests of the generality of members that the order should be made.
6
In considering whether or not to make an order under that section, the Board shall have regard—
a
to the structure and character of the scheme and the benefits provided by it;
b
to the provisions of this Act and Chapter I of Part XIV of the M43Income and Corporation Taxes Act 1988; and
c
to all the circumstances in general.
7
Regulations may provide that in prescribed circumstances subsections (4) and (5) shall not apply to occupational pension schemes or shall apply to them with prescribed modifications.
I1139 Other functions of the Board as respects modification of schemes.
F1171
If in the case of a scheme to which section 53 applies the Board are not satisfied as to the soundness and adequacy of any investments held for the purposes of the scheme (so far as relevant to the considerations of section 24(1)), they may by order—
a
modify the scheme’s rules, or
b
direct the scheme’s trustees or managers to take such steps as the order may specify,
with a view to ensuring that the guaranteed minimum pensions under the scheme are adequately secured to its beneficiaries, both present and future.
2
If the Board determine under section 134 that a scheme does not conform with the preservation requirements, F19... or the voluntary contributions requirements they shall, either at the time of issuing their determination or as soon afterwards as they think expedient—
a
by order direct the trustees or managers of the scheme or any other persons who have power to alter any of its rules to exercise such powers as they possess for modifying the scheme with a view to bringing it into conformity with those requirements (including 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 (and, in particular, in the case of an occupational pension scheme, any employer of persons in service in an employment to which the scheme applies) to make that modification; or
c
themselves by order modify the scheme with a view to bringing it into conformity with the requirements in question.
3
The Board may exercise their powers under subsection (2) in relation to any scheme in respect of which they have issued a determination under section 134, and may exercise the powers together or separately.
I1140 Effect of orders under ss. 136 and 139.
F1171
An order under paragraph (a) of section 136(1) may enable those exercising any power conferred by the order to exercise it retrospectively (whether or not the power could otherwise be so exercised) and an order under paragraph (b) of that section may modify a scheme retrospectively.
2
An order under paragraph (a) of section 139(2) may require persons to exercise a power retrospectively (whether or not the power could otherwise be so exercised), and an order under paragraph (b) or (c) of that section may operate retrospectively.
3
In this section “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, but—
a
in the case of an order under section 136(1), that date shall be such date as may be proposed for the purposes of this subsection by the persons applying for the order; and
b
in the case of an order under section 139(2), that date shall not be a date earlier than the operative date for the requirements.
4
In subsection (3)(b) “the operative date for the requirements” means—
a
in the case of the preservation requirements, 5th September 1973;
b
in the case of the voluntary contributions requirements—
i
as respects a personal pension scheme in so far as it is comprised in an annuity contract, 1st July 1988, but otherwise 4th January 1988, and
ii
as respects an occupational pension scheme, 6th April 1988; F20...
F20c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
Any modification of a scheme made in pursuance of an order of the Board under section 136(1) or 139(2)(b) or (c) shall be as effective in law as if it had been made under powers conferred by or under the scheme.
6
An order under section 136(1) or 139(2)(b) or (c) 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.
F117I1141 Modification of public service schemes.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Winding up
F209I1142 Powers of the Board to wind up schemes.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F209I1143 Winding up of public service schemes.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I1C2144 Deficiencies in the assets of a scheme on winding up.
F2101
If, in the case of an occupational pension scheme which is not a money purchase scheme, the value at the applicable time of the scheme’s liabilities exceeds the value of its assets, then an amount equal to the excess shall be treated as a debt due from the employer to the trustees of the scheme.
2
If—
a
a relevant insolvency event occurs in relation to the employer; and
b
the debt mentioned in subsection (1) has not been discharged at the time that event occurs,
then, for the purposes of the law relating to winding up, bankruptcy or sequestration as it applies in relation to the employer, that debt shall be taken to arise immediately before that time.
3
In this section—
“the applicable time” means—
a
if the scheme is being wound up before a relevant insolvency event occurs in relation to the employer, any time when it is being wound up before such an event occurs; and
b
otherwise, immediately before the relevant insolvency event occurs; and
“the employer” means the employer of persons of the description or category of employment to which the scheme relates.
4
For the purposes of this section a relevant insolvency event occurs in relation to the employer—
a
in England and Wales—
i
where the employer is a company, when it goes into liquidation, within the meaning of section 247(2) of the M44Insolvency Act 1986; or
ii
where the employer is an individual, at the commencement of his bankruptcy, within the meaning of section 278 of that Act; or
b
in Scotland—
i
where the employer is a company, at the commencement of its winding up, within the meaning of section 129 of that Act; or
ii
where the employer is a debtor within the meaning of the M45Bankruptcy (Scotland) Act 1985, on the date of sequestration as defined in section 12(4) of that Act.
5
The value of a scheme’s assets and liabilities for the purposes of subsection (1) shall be determined in accordance with regulations and such regulations may provide that, in calculating the value of the scheme’s liabilities, any provision of the scheme which limits the amount of its liabilities by reference to the amount of its assets is to be disregarded.
6
This section is without prejudice to any other right or remedy which the trustees may have in respect of the deficiency in the scheme’s assets.
7
A debt due by virtue only of this section shall not be regarded—
a
as a preferential debt for the purposes of the M46Insolvency Act 1986, nor
b
as a preferred debt for the purposes of the M47Bankruptcy (Scotland) Act 1985.
8
The provisions of this section and of any regulations made under section 153(5) modifying this section override any provision of a scheme to the extent that it conflicts with this section or those regulations.
Part X Investigations: the Pensions Ombudsman
E2I1145 The Pensions Ombudsman.
1
For the purpose of conducting investigations in accordance with this Part or any corresponding legislation having effect in Northern Ireland there shall be a commissioner to be known as the Pensions Ombudsman.
2
The Pensions Ombudsman shall be appointed by the Secretary of State and shall hold office upon such terms and conditions as the Secretary of State may think fit.
3
The Pensions Ombudsman may at any time—
a
be removed from office by notice in writing given to him by the Secretary of State; or
b
resign his office by giving such notice to the Secretary of State.
F154A
The Pensions Ombudsman may (with the approval of the Secretary of State as to numbers) appoint such persons to be employees of his as he thinks fit, on such terms and conditions as to remuneration and other matters as the Pensions Ombudsman may with the approval of the Secretary of State determine.
4B
The Secretary of State may, on such terms as to payment by the Pensions Ombudsman as the Secretary of State thinks fit, make available to the Pensions Ombudsman such additional staff and such other facilities as he thinks fit.
4C
Any function of the Pensions Ombudsman, other than the determination of complaints made and disputes referred under this Part, may be performed by any—
a
employee appointed by the Pensions Ombudsman under subsection (4A), or
b
member of staff made available to him by the Secretary of State under subsection (4B),
who is authorised for that purpose by the Pensions Ombudsman.
5
The Secretary of State may—
a
pay to or in respect of the Pensions Ombudsman such amounts by way of remuneration, compensation for loss of office, pension, allowances and gratuities, or by way of provision for any such benefits, as the Secretary of State may determineF211...; and
b
reimburse him in respect of any expenses incurred by him in the performance of his functions.
6
The Pensions Ombudsman shall prepare a report on the discharge of his functions for each financial year, and shall submit it to the Secretary of State as soon as practicable afterwards.
7
The Secretary of State shall arrange for the publication of each report submitted to him under subsection (6).
I1146 Functions of the Pensions Ombudsman.
1
a
a complaint made to him by or on behalf of an actual or potential beneficiary of an occupational or personal pension scheme who alleges that he has sustained injustice in consequence of maladministration in connection with any act or omission of a person responsible for the management of the scheme,
b
a complaint made to him—
i
by or on behalf of a person responsible for the management of an occupational pension scheme who in connection with any act or omission of another person responsible for the management of the scheme, alleges maladministration of the scheme, or
ii
by or on behalf of the trustees or managers of an occupational pension scheme who in connection with any act or omission of any trustee or manager of another such scheme, allege maladministration of the other scheme,
and in any case falling within sub-paragraph (ii) references in this Part to the scheme to which the complaint relates F430are references to the other scheme referred to in that sub-paragraph,
F421ba
a complaint made to him by or on behalf of an independent trustee of a trust scheme who, in connection with any act or omission which is an act or omission either—
i
of trustees of the scheme who are not independent trustees, or
ii
of former trustees of the scheme who were not independent trustees,
alleges maladministration of the scheme,
c
any dispute of fact or law F431... in relation to an occupational or personal pension scheme between—
i
a person responsible for the management of the scheme, and
ii
an actual or potential beneficiary,
and which is referred to him by or on behalf of the actual or potential beneficiary, and
d
any dispute of fact or law F432... between the trustees or managers of an occupational pension scheme and—
i
another person responsible for the management of the scheme, or
ii
any trustee or manager of another such scheme,
F422and in a case falling within sub-paragraph (ii) references in this Part to the scheme to which the reference relates are references to each of the schemes,
e
any dispute not falling within paragraph (f) between different trustees of the same occupational pension scheme,
f
any dispute, in relation to a time while section 22 of the Pensions Act 1995 (schemes subject to insolvency procedures) applies in relation to an occupational pension scheme, between an independent trustee of the scheme and either—
i
trustees of the scheme who are not independent trustees, or
ii
former trustees of the scheme who were not independent trustees, and
g
any question relating, in the case of an occupational pension scheme with a sole trustee, to the carrying out of the functions of that trustee.
F4231A
The Pensions Ombudsman shall not investigate or determine any dispute or question falling within subsection (1)(c) to (g) unless it is referred to him—
a
in the case of a dispute falling within subsection (1)(c), by or on behalf of the actual or potential beneficiary who is a party to the dispute,
b
in the case of a dispute falling within subsection (1)(d), by or on behalf of any of the parties to the dispute,
c
in the case of a dispute falling within subsection (1)(e), by or on behalf of at least half the trustees of the scheme,
d
in the case of a dispute falling within subsection (1)(f), by or on behalf of the independent trustee who is a party to the dispute,
e
in the case of a question falling within subsection (1)(g), by or on behalf of the sole trustee.
1B
For the purposes of this Part, any reference to or determination by the Pensions Ombudsman of a question falling within subsection (1)(g) shall be taken to be the reference or determination of a dispute.
2
F53Complaints and references made to the Pensions Ombudsman must be made to him in writing.
3
F53For the purposes of this Part, the following persons (subject to subsection (4)) are responsible for the management of an occupational pension scheme F424or a personal pension scheme—
a
the trustees or managers, and
b
the employer;
but, in relation to a person falling within one of those paragraphs, references in this Part to another person responsible for the management of the same scheme are to a person falling within the other paragraph.
F4333A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
F53Regulations may provide that, subject to any prescribed modifications or exceptions, this Part shall apply in the case of an occupational or personal pension scheme in relation to any prescribed person or body of persons where the person or body—
a
is not a trustee or manager or employer, but
b
is concerned with the financing or administration of, or the provision of benefits under, the scheme,
as if for the purposes of this Part he were a person responsible for the management of the scheme
5
The Pensions Ombudsman may investigate a complaint or dispute notwithstanding that it arose, or relates to a matter which arose, before 1st October 1990 (the date on which the provisions under which his office was constituted came into force).
6
The Pensions Ombudsman shall not investigate or determine a complaint or dispute—
F425a
if, before the making of the complaint or the reference of the dispute—
i
proceedings in respect of the matters which would be the subject of the investigation have been begun in any court or employment tribunal, and
ii
those proceedings are proceedings which have not been discontinued or which have been discontinued on the basis of a settlement or compromise binding all the persons by or on whose behalf the complaint or reference is made;
b
if the scheme is of a description which is excluded from the jurisdiction of the Pensions Ombudsman by regulations under this subsection; or
c
if and to the extent that the complaint or dispute, or any matter arising in connection with the complaint or dispute, is of a description which is excluded from the jurisdiction of the Pensions Ombudsman by regulations under this subsection.
7
The persons who, for the purposes of this Part are F212actual or potential beneficiaries in relation to a scheme are—
a
a member of the scheme,
b
the widow or widower, or any surviving dependant, of a deceased member of the scheme;
F426ba
a person who is entitled to a pension credit as against the trustees or managers of the scheme;
c
where the complaint or dispute relates to the question—
i
whether a person who claims to be such a person as is mentioned in F427paragraph (a), (b) or (ba) is such a person, or
ii
whether a person who claims to be entitled to become a member of the scheme is so entitled,
the person so claiming.
8
In this Part—
“employer”, in relation to a pension scheme, includes a person—
- a
who is or has been an employer in relation to the scheme, or
- b
who is or has been treated under section 181(2) as an employer in relation to the scheme for the purposes of any provision of this Act, or under section 176(2) of the M48Pension Schemes (Northern Ireland) Act 1993 as an employer in relation to the scheme for the purposes of any provision of that Act;
- a
F428“independent trustee”, in relation to a scheme, means—
- (a)
a trustee of the scheme appointed under section 23(1)(b) of the Pensions Act 1995 (appointment of independent trustee by insolvency practitioner or official receiver),
- (b)
a person appointed under section 7(1) of that Act to replace a trustee falling within paragraph (a) or this paragraph;
- (a)
“member”, in relation to a pension scheme, includes a person—
- a
who is or has been in pensionable service under the scheme, or
- b
who is or has been treated under section 181(4) as a member in relation to the scheme for the purposes of any provision of this Act or under section 176(3) of the M48 Pension Schemes (Northern Ireland) Act 1993 as a member in relation to the scheme for the purposes of any provision of that Act;
- a
“Northern Ireland public service pension scheme” means a public service pension scheme within the meaning of section 176(1) of that Act;
“pensionable service” in this subsection includes pensionable service as defined in section 176(1) of that Act;
“trustees or managers”, in relation to a pension scheme which is a public service pension scheme or a Northern Ireland public service pension scheme, includes the scheme’s administrators.
I1147 Death, insolvency or disability of authorised complainant.
1
Where an F213actual or potential beneficiary dies or is a minor or is otherwise unable to act for himself, then, unless subsection (3) applies—
a
any complaint or dispute (whenever arising) which the F213actual or potential beneficiary might otherwise have made or referred under this Part may be made or referred by the appropriate person, and
b
anything in the process of being done by or in relation to the F213actual or potential beneficiary under or by virtue of this Part may be continued by or in relation to the appropriate person,
and any reference in this Part, except this section, to an F213actual or potential beneficiary shall be construed as including a reference to the appropriate person.
2
For the purposes of subsection (1) “the appropriate person” means—
a
where the F214actual or potential beneficiary has died, his personal representatives; or
b
in any other case, a member of F214his family, or some body or individual suitable to represent him.
3
Where a person is acting as an insolvency practitioner in relation to F215a person by whom, or on whose behalf, a complaint or reference has been made under this Part, investigations under this Part shall be regarded for the purposes of the M49Insolvency Act 1986 and the M50Bankruptcy (Scotland) Act 1985 as legal proceedings.
4
In this section “acting as an insolvency practitioner” shall be construed in accordance with section 388 of the Insolvency Act 1986, but disregarding subsection (5) of that section (exclusion of official receiver).
I1148 Staying court proceedings where a complaint is made or a dispute is referred.
1
This section applies where—
a
a complaint has been made or a dispute referred to the Pensions Ombudsman; and
b
any party to the investigation subsequently commences any legal proceedings in any court against any other party to the investigation in respect of any of the matters which are the subject of the complaint or dispute.
2
In England and Wales, where this section applies any party to the legal proceedings may at any time after acknowledgement of service, and before delivering any pleadings or taking any other step in the proceedings, apply to that court to stay the proceedings.
3
In Scotland, where this section applies any party to the legal proceedings may—
a
if the proceedings are in the Court of Session, at any time—
i
after appearance has been entered but before defences have been lodged or any other step in the proceedings has been taken; or
ii
(in procedure by petition) after intimation and service but before answers have been lodged or any other step in the proceedings has been taken; and
b
if the proceedings are in the sheriff court, at any time—
i
after notice has been given of intention to defend but before defences have been lodged or any other step in the proceedings has been taken; or
ii
(in summary cause procedure) after appearance has been made, or notice of intention to appear has been lodged, but before any defence has been stated or any other step in the proceedings has been taken,
apply to the court for a sist of process.
4
On an application under subsection (2) or (3) the court may make an order staying or, in Scotland, sisting the proceedings if it is satisfied—
a
that there is no sufficient reason why the matter should not be investigated by the Pensions Ombudsman; and
b
that the applicant was at the time when the legal proceedings were commenced and still remains ready and willing to do all things necessary to the proper conduct of the investigation.
5
For the purposes of this section the parties to an investigation are—
F216a
the person by whom, or on whose behalf, the complaint or reference has been made,
F216b
any person responsible for the management of the scheme to which the complaint or reference relates
F492ba
any actual or potential beneficiary of the scheme whose interests are or may be affected by the matters to which the complaint or dispute relates,
bb
any actual or potential beneficiary of the scheme whose interests it is reasonable to suppose might be affected by—
i
the Pensions Ombudsman’s determination of the complaint or dispute, or
ii
directions that may be given by the Ombudsman in consequence of that determination,
c
any person against whom allegations are made in the complaint or reference; and
d
any person claiming under a person falling within paragraphs (a) to (c).
I1149 Procedure on an investigation.
1
F493Where the Pensions Ombudsman proposes to conduct an investigation into a complaint made or dispute referred under this Part, he shall give—
a
F218any person (other than the person by whom, or on whose behalf, the complaint or reference was made) responsible for the management of the scheme to which the complaint or reference relates, and
b
any other person against whom allegations are made in the complaint or reference,
an opportunity to comment on any allegations contained in the complaint or reference.
F493Where the Pensions Ombudsman proposes to conduct an investigation into a complaint made or dispute referred under this Part, he shall—
a
give every person against whom allegations are made in the complaint or reference an opportunity to comment on those allegations,
b
give every person responsible for the management of the scheme to which the complaint or reference relates an opportunity to make representations to him about the matters to which the complaint or dispute relates, and
c
give every actual or potential beneficiary of that scheme whose interests are or may be affected by the matters to which the complaint or dispute relates, an opportunity to make representations about those matters.
1A
Subject to subsection (1B), subsection (1) shall not require an opportunity to make comments or representations to be given to any person if the Pensions Ombudsman is satisfied that that person is—
a
a person who, as the person or one of the persons making the complaint or reference, has had his opportunity to make comments or representations about the matters in question; or
b
a person whose interests in relation to the matters to which the complaint or dispute relates are being represented, in accordance with rules under this section, by a person who has been given an appropriate opportunity to make comments or representations.
1B
The Pensions Ombudsman shall, under subsection (1), give an opportunity to make comments and representations to a person falling within subsection (1A)(a) in any case in which that person is a person who, in accordance with rules, is appointed or otherwise determined, after the making of the complaint or reference, to represent the interests of other persons in relation to the matters to which the complaint or dispute relates.
2
The Secretary of State may make rules with respect to the procedure which is to be adopted in connection with the making of complaints, the reference of disputes, and the investigation of complaints made and disputes referred, under this Part.
3
The rules may include provision—
a
requiring any oral hearing held in connection with such an investigation to take place in public, except in such cases as may be specified in the rules; F78...
b
F494ba
for the interests of all of a number of persons who—
i
are actual or potential beneficiaries of the scheme to which the complaint or reference relates, and
ii
appear to have the same interest in relation to any of the matters to which the complaint or dispute relates,
to be represented for the purposes of the investigation by such one or more of them, or such other person, as may be appointed by the Ombudsman or otherwise determined in accordance with the rules,
c
for the payment by the Ombudsman of such travelling and other allowances (including compensation for loss of remunerative time) as the Secretary of State may determine, to—
i
actual or potential beneficiaries of a scheme to which a complaint or reference relates, or
ii
persons appearing and being heard on behalf of such actual or potential beneficiaries,
who attend at the request of the Ombudsman any oral hearing held in connection with an investigation into the complaint or dispute.F495and
d
for the payment of legal expenses incurred by a party to an investigation (as defined in section 148(5)) out of funds held for the purposes of the scheme to which the complaint or reference relates.
4
Subject to any provision made by the rules, the procedure for conducting such an investigation shall be such as the Pensions Ombudsman considers appropriate in the circumstances of the case; and he may, in particular, obtain information from such persons and in such manner, and make such inquiries, as he thinks fit.
F2175
The Pensions Ombudsman may disclose any information which he obtains for the purposes of an investigation under this Part to any person to whom subsection (6) applies, if the Ombudsman considers that the disclosure would enable or assist that person to discharge any of his functions.
6
This subsection applies to the following—
a
the Regulatory Authority,
b
the Pensions Compensation Board,
c
the Registrar,
d
any department of the Government (including the government of Northern Ireland),
e
the F281Financial Services Authority,
F478f
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F478g
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F479h
a person appointed under—
i
Part 14 of the Companies Act 1985,
ii
section 167 of the Financial Services and Markets Act 2000,
iii
subsection (3) or (5) of section 168 of that Act, or
iv
section 284 of that Act,
to conduct an investigation;
j
an inspector appointed by the Department of Economic Development in Northern Ireland under Part XV of the Companies (Northern Ireland) Order 1986,
F480k
a body designated under section 326(1) of the Financial Services and Markets Act 2000; and
l
a recognised investment exchange or a recognised clearing house (as defined by section 285 of that Act).
7
The Secretary of State may by order—
a
amend subsection (6) by adding any person or removing any person for the time being specified in that subsection, or
b
restrict the circumstances in which, or impose conditions subject to which, disclosure may be made to any person for the time being specified in that subsection.
F4968
References in this section to the matters to which a complaint or dispute relates include references to any matter which it is reasonable to suppose might form the subject of—
a
the Pensions Ombudsman’s determination of the complaint or dispute, or
b
any directions that may be given by the Ombudsman in consequence of that determination.
I1150 Investigations: further provisions.
1
For the purposes of an investigation under this Part or under any corresponding legislation having effect in Northern Ireland, the Pensions Ombudsman may require—
a
F219any person responsible for the management of the scheme to which the complaint or reference relates, or
b
any other person who, in his opinion is able to furnish information or produce documents relevant to the investigation,
to furnish any such information or produce any such documents.
2
For the purposes of any such investigation the Pensions Ombudsman shall have the same powers as the court in respect of the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad) and in respect of the production of documents.
3
No person shall be compelled for the purposes of any such investigation to give any evidence or produce any document which he could not be compelled to give or produce in civil proceedings before the court.
4
If any person without lawful excuse obstructs the Pensions Ombudsman in the performance of his functions or is guilty of any act or omission in relation to an investigation under this Part which, if that investigation were a proceeding in the court, would constitute contempt of court, the Pensions Ombudsman may certify the offence to the court.
5
Where an offence is certified under subsection (4) the court may inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of the person charged with the offence and hearing any statement that may be offered in defence, deal with him in any manner in which the court could deal with him if he had committed the like offence in relation to the court.
6
To assist him in an investigation, the Pensions Ombudsman may obtain advice from any person who in his opinion is qualified to give it and may pay to any such person such fees or allowances as he may with the approval of the Treasury determine.
7
The Pensions Ombudsman may refer any question of law arising for determination in connection with a complaint or dispute to the High Court or, in Scotland, the Court of Session.
8
In this section “the court” means—
a
in England and Wales, a county court;
b
in Scotland, the sheriff.
9
Subsections (4) and (5) shall be construed, in their application to Scotland, as if contempt of court were categorised as an offence in Scots law.
I1151 Determinations of the Pensions Ombudsman.
1
Where the Pensions Ombudsman has conducted an investigation under this Part he shall send a written statement of his determination of the complaint or dispute in question—
F220a
to the person by whom, or on whose behalf, the complaint or reference was made, and
F220b
to any person (if different) responsible for the management of the scheme to which the complaint or reference relatesF497and
c
to every other person who was required under section 149 to be given an opportunity—
i
to comment on an allegation in the complaint or reference, or
ii
to make representations about matters to which the complaint or reference relates,
and any such statement shall contain the reasons for his determination.
2
Where the Pensions Ombudsman makes a determination under this Part or under any corresponding legislation having effect in Northern Ireland, he may direct F221any person responsible for the management of the scheme to which the complaint or reference relates to take, or refrain from taking, such steps as he may specify in the statement referred to in subsection (1) or otherwise in writing.
3
Subject to subsection (4), the determination by the Pensions Ombudsman of a complaint or dispute, and any direction given by him under subsection (2), shall be final and binding on—
F222a
the person by whom, or on whose behalf, the complaint or reference was made,
F222b
any person (if different) responsible for the management of the scheme to which the complaint or reference relates,F498and
F498ba
any person who under section 149 was given such an opportunity to make any such comment or representation as is mentioned in subsection (1)(c) of this section,
bb
any person whose interests were represented by a person falling within any of the preceding paragraphs, and
4
An appeal on a point of law shall lie to the High Court or, in Scotland, the Court of Session from a determination or direction of the Pensions Ombudsman at the instance of any person falling within paragraphs (a) to (c) of subsection (3).
5
Any determination or direction of the Pensions Ombudsman shall be enforceable—
a
in England and Wales, in a county court as if it were a judgment or order of that court, and
b
in Scotland, F224in like manner as an extract registered decree arbitral bearing warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
6
If the Pensions Ombudsman considers it appropriate to do so in any particular case, he may publish in such form and manner as he thinks fit a report of any investigation under this Part and of the result of that investigation.
7
For the purposes of the law of defamation, the publication of any matter by the Pensions Ombudsman—
a
in submitting or publishing a report under section 145(6) or subsection (6) of this section
F223aa
in disclosing any information under section 149(5), or
b
in sending to any person a statement under subsection (1) or a direction under subsection (2),
shall be absolutely privileged.
151AF79Interest on late payment of benefit
Where under this Part the Pensions Ombudsman directs a person responsible for the management of an occupational or personal pension scheme to make any payment in respect of benefit under the scheme which, in his opinion, ought to have been paid earlier, his direction may also require the payment of interest at the prescribed rate
I1152 Power to make special county court rules.
1
The Secretary of State may make rules—
a
regulating the practice, and the forms of proceedings, which are to be followed in county courts in any proceedings under or by virtue of this Part; and
b
prescribing the scales of costs to be paid in connection with any such proceedings.
2
Without prejudice to the generality of subsection (1), rules under this section may, to any extent and with or without modifications, apply any county court rules to proceedings under or by virtue of this Part.
Part XI General and miscellaneous provisions
Modification powers
I1153 Power to modify certain provisions of this Act.
1
The Secretary of State may by regulations direct that Chapters II, III and IV of Part IV F225...shall have effect, in such cases as he may specify in the regulations, subject to such modifications as he may specify.
2
Regulations may modify Chapter I of Part IV—
a
in its application to cases where an earner is for the time being, or has been, employed in pensionable service under, or in contracted-out employment by reference to, different schemes applying to the same employment;
b
in such manner as the Secretary of State thinks fit for securing that the preservation requirements include requirements for provision to be made in a scheme as to the preservation of a member’s benefit in the event of the scheme being wound up;
c
without prejudice to paragraph (a) or (b), so that the preservation requirements apply with such modifications and exceptions as the Secretary of State considers to be necessary for particular cases or classes of case;
and regulations under paragraph (a) may relate to service under or, as the case may be, by reference to different schemes at the same time, or at different times.
F213
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F214
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
The Secretary of State may make regulations modifying F226... section 129 (so far as it applies to that Chapter) or section 144, in their application—
a
to any occupational pension scheme which applies to earners in employments under different employers;
b
to any occupational pension scheme of which there are no members who are in pensionable service under the scheme; F227or
c
to any case where a partnership is the employer, or one of the employers, in relation to an occupational pension scheme; F228...
F228d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2296
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2297
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
The Secretary of State may by order provide that any enactment in Chapter II of Part VII which is specified in the order—
a
shall not apply to persons or to employments of such classes as may be prescribed in the order; or
b
shall apply to persons or employments of such classes as may be so prescribed subject, but without prejudice to paragraph (a), to such exceptions or modifications as may be so prescribed;
and in this subsection “employments” has the same meaning as in that Chapter.
I1154 Application of enactments as respects personal pension schemes.
1
Regulations may provide that any provision of this Act F230or of sections 22 to 26 and 40 of the Pensions Act 1995 which relates to occupational pension schemes (other than a provision to which subsection (2) applies) shall have effect in relation to personal pension schemes subject to prescribed modifications.
2
This subsection applies to section 66, section 111 so far as it relates to occupational pension schemes, (and Part VIII and section 153 so far as they have effect for the purposes of section 111 as it so relates), sections 117, 123 to 127, 155, 157, 160 and 161.
Information about schemes
I1155 Requirement to give information to the Secretary of State or the Board for the purposes of certain provisions.
Regulations may require the furnishing by prescribed persons to the Secretary of State F341or the Inland RevenueF98... of such information as he F342or they require for the purposes of F99... F99Part III, section 111 (and Part VIII and section 153 so far as they have effect for the purposes of section 111), section 117 and section 159 (so far as it relates to protected rights payments).
I1156F457 Information for purposes of contracting-out.
1
The Secretary of State or the Inland Revenue may give to the trustees or managers of an occupational pension scheme or appropriate scheme such information as appears to the Secretary of State or Inland Revenue appropriate to give to them for the purpose of enabling them to comply with their obligations under Part III.
2
The Secretary of State or Inland Revenue may also give to such persons as may be prescribed any information that they could give under subsection (1) to trustees or managers of a scheme.
I1157 Power of Secretary of State to obtain information in connection with applications under s. 124.
1
Where an application is made to the Secretary of State under section 124 in respect of contributions to an occupational pension scheme or personal pension scheme falling to be made, by an employer, the Secretary of State may require—
a
the employer to provide him with such information as the Secretary of State may reasonably require for the purpose of determining whether the application is well founded; and
b
any person having the custody or control of any relevant records or other documents to produce for examination on behalf of the Secretary of State any such document in that person’s custody or under his control which is of such a description as the Secretary of State may require.
2
Any such requirement shall be made in writing given to the person on whom the requirement is imposed and may be varied or revoked by a subsequent notice so given.
3
If a person refuses or wilfully neglects to furnish any information or produce any document which he has been required to furnish or produce by a notice under this section he shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
4
If a person, in purporting to comply with a requirement of a notice under this section, knowingly or recklessly makes any false statement, he shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
5
This section shall be construed as if it were in Chapter II of Part VII.
I1158 Disclosure of information between government departments etc.
1
No obligation as to secrecy imposed by statute or otherwise on persons employed in relation to the Inland Revenue shall prevent information obtained or held in connection with the assessment or collection of income tax from being disclosed—
a
to the Secretary of State,
b
to the Department of Health and Social Services for Northern Ireland, or
c
to an officer of either of them authorised to receive such information, in connection with the operation of this Act (except Chapter II of Part VII and sections 157 and 161) or of any corresponding enactment of Northern Ireland legislation.
F3491A
No obligation as to secrecy imposed by statute or otherwise on persons employed in relation to the Inland Revenue shall prevent information obtained or held for the purposes of Part III of this Act from being disclosed—
a
to the Secretary of State,
b
to the Department of Health and Social Services for Northern Ireland, or
c
to an officer of either of them authorised to receive such information,
in connection with the operation of this Act or of any corresponding enactment of Northern Ireland legislation.
F2312
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2313
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
In relation to persons who are carrying on or have carried on a trade, profession or vocation income from which is chargeable to tax under Case I or II of Schedule D, disclosure under subsection (1) relating to that trade, profession or vocation shall be limited to information about the commencement or cessation of, and employed earners engaged in, that trade, profession or vocation, but sufficient information may also be given to identify the persons concerned.
5
F350Subsections (1) and (1A) extend only to disclosure by or under the authority of the Inland Revenue.
6
F232Subject to subsection (7), information which is the subject of disclosure to any person by virtue of subsection (1) F351or (1A), ...shall not be further disclosed to any other person, except where the further disclosure is made—
a
to a person to whom disclosure could by virtue of this section have been made by or under the authority of the Inland Revenue; or
b
for the purposes of any civil or criminal proceedings in connection with the operation of this Act (except Chapter II of Part VII and sections 157 and 161); or
c
ca
for the purposes of Part II of the Social Security Contributions (Transfer of Functions, etc.) Act 1999 or any corresponding provisions of Northern Ireland legislation.
F233d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
The Secretary of State, F234and the Inland Revenue may provide the Registrar with such information as he may request for the purposes of the register; and no obligation as to secrecy or confidentiality imposed by statute or otherwise on—
a
persons employed in the Department of Social Security, F235or
b
persons employed in relation to the Inland Revenue, F236...
F236c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
shall prevent them from disclosing to the Registrar such information as is necessary for the purposes of the register.
F2378
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C75158AF35Other disclosures by the Secretary of State.
1
The Secretary of State may, in spite of any obligation as to secrecy or confidentiality imposed by statute or otherwise on him or on persons employed in the Department of Social Security, disclose any information received by him in connection with his functions under this Act or the Pensions Act 1995 to any person specified in the first column of the following Table if he considers that the disclosure would enable or assist the person to discharge the functions specified in relation to the person in the second column of the Table.
Persons | Functions |
|---|---|
F481. . . | F481. . . |
The Bank of England. | F282Any of its functions. |
F283The Financial Services Authority. | F482Functions under the legislation relating to friendly societies, under the Building Societies Act 1986 or under the Financial Services and Markets Act 2000. |
The Regulatory Authority. | Functions under this Act or the Pensions Act 1995, or any enactment in force in Northern Ireland corresponding to either of them. |
The Pensions Compensation Board. | Functions under the Pensions Act 1995 or any corresponding enactment in force in Northern Ireland. |
F483A person appointed under—
| Functions in relation to that investigation |
F483A body designated under section 326(1) of the Financial Services and Markets Act 2000. | Functions in its capacity as a body designated under that section. |
F483A recognised investment exchange or a recognised clearing house (as defined by section 285 of that Act). | Functions in its capacity as an exchange or clearing house recognised under that Act. |
F481. . . | F481. . . |
F481. . . | F481. . . |
F481. . . | F481. . . |
F481. . . | F481. . . |
F481. . . | F481. . . |
F481. . . | F481. . . |
F3531A
The Inland Revenue may, in spite of any obligation as to secrecy or confidentiality imposed by statute or otherwise on them or on their officers, disclose any information received by them in connection with their functions under Part III of this Act to any person specified in the first column of the Table in subsection (1) if they consider that the disclosure would enable or assist the person to discharge the functions specified in relation to the person in the second column of the Table.
2
The Secretary of State may by order—
a
amend the Table in subsection (1) by—
i
adding any person exercising regulatory functions and specifying functions in relation to that person,
ii
removing any person for the time being specified in the Table, or
iii
altering the functions for the time being specified in the Table in relation to any person, or
b
restrict the circumstances in which, or impose conditions subject to which, disclosure may be made to any person for the time being specified in the Table
Avoidance of certain transactions and provisions
I1C8C7C82C83C84C85159 Inalienability of guaranteed minimum pension and protected rights payments.
1
Where—
a
a person is entitled or prospectively entitled to a guaranteed minimum pension under an occupational pension scheme or to payments giving effect to protected rights under such a scheme; and
b
his entitlement is in respect of his or another person’s service in employment which was contracted-out by reference to that scheme;
then—
i
every assignment of or charge on that pension or those payments, and
ii
every agreement to assign or charge that pension or those payments,
shall be void.
2
In subsection (1), the references to assignments of and agreements to assign a guaranteed minimum pension do not include references to any assignment of or agreement to assign a policy of insurance or annuity contract in accordance with conditions prescribed by regulations under section 19(4)(b).
3
Subsection (1) has effect whether or not the assignment, charge or agreement was made at a time when the employment was contracted-out employment or the scheme was a contracted-out scheme in relation to the employment.
C10C44C704
Every assignment of or charge on and every agreement to assign or charge protected rights under a personal pension scheme or payments giving effect to such protected rights shall be void.
C44C70F2384A
Where a person—
a
is entitled or prospectively entitled as is mentioned in subsection (1), or
b
is entitled to such rights or to such a payment as is mentioned in subsection (4),
no order shall be made by any court the effect of which would be that he would be restrained from receiving anything the assignment of which is or would be made void by either of those subsections.
4B
Subsection (4A) does not prevent the making of an attachment of earnings order under the Attachment of Earnings Act 1971.
F5125
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
In the application of this section to Scotland—
a
references to assignment shall be construed as references to assignation and “assign” shall be construed accordingly; and
b
the reference to a person’s bankruptcy shall be construed as a reference to the sequestration of his estate or the appointment on his estate of a judicial factor under section 41 of the M52Solicitors (Scotland) Act 1980.
159AF502No forfeiture on bankruptcy of rights under personal pension schemes.
1
A person’s rights under a personal pension scheme cannot be forfeited by reference to his bankruptcy.
2
For the purposes of this section—
a
a person shall be treated as having a right under a personal pension scheme where—
i
he is entitled to a credit under section 29(1)(b) of the Welfare Reform and Pensions Act 1999 (sharing of rights on divorce etc.),
ii
he is so entitled as against the person responsible for the scheme (within the meaning of Chapter I of Part IV of that Act), and
iii
the person so responsible has not discharged his liability in respect of the credit; and
b
forfeiture shall be taken to include any manner of deprivation or suspension.
I1160 Terms of contracts of service or schemes restricting choice to be void.
1
Subject to such exceptions as may be prescribed—
a
any term of a contract of service (whenever made) or any rule of a personal or occupational pension scheme to the effect that an employed earner must be a member—
i
of a personal or occupational pension scheme,
ii
of a particular personal or occupational pension scheme, or
iii
of one or other of a number of particular personal or occupational pension schemes,
shall be void; and
b
any such term or rule to the effect that contributions shall be paid by or in respect of an employed earner—
i
to a particular personal or occupational pension scheme of which the earner is not a member, or
ii
to one or other of a number of personal or occupational pension schemes of none of which he is a member,
shall be unenforceable for so long as he is not a member of the scheme or any of the schemes.
2
Subsection (1) shall not be construed so as to have the effect that an employer is required, when he would not otherwise be—
a
to make contributions to a personal or occupational pension scheme; or
b
to increase an employed earner’s pay in lieu of making contributions to a personal or occupational pension scheme.
I1161 Provisions excluding Chapter II of Part VII to be void.
Any provision in an agreement (whether a contract of employment or not) shall be void in so far as it purports—
a
to exclude or limit the operation of any provision of Chapter II of Part VII of this Act; or
b
to preclude any person from presenting a complaint to, or bringing any proceedings before, an industrial tribunal under that Chapter.
I1162 Removal of restrictions on friendly societies’ pension business.
1
The Secretary of State may make such regulations as he thinks appropriate for enabling a friendly society to conduct group insurance business with a view to the establishment of occupational pension schemes or personal pension schemes.
2
The power to make regulations under this section shall extend to enabling friendly societies to conduct group insurance business freed from any restrictions of the relevant legislation as to the amounts which a member, or a person claiming through a member, is entitled to receive from any one or more societies or branches.
3
Regulations under this section may include such adaptations and modifications of the relevant legislation, and such other supplementary and incidental provisions, as the Secretary of State considers to be necessary or expedient for achieving the purposes referred to in subsection (1).
4
In this section—
a
b
“friendly society”, has the same meaning as in the Friendly Societies Act 1992; and
c
“group insurance business” means—
i
in relation to a registered friendly society, group insurance business within the meaning of section 65A of the Friendly Societies Act 1974, and
ii
in relation to an incorporated friendly society, group insurance business within the meaning of section 11 of the Friendly Societies Act 1992,
and in this paragraph “registered friendly society” and “incorporated friendly society” have the same meaning as in that Act of 1992.
I1163 Exemption of certain schemes from rule against perpetuities.
1
The rules of law relating to perpetuities shall not apply to the trusts of, or any disposition made under or for the purposes of a personal or occupational pension scheme at any time when this section applies to it.
2
This section applies to—
a
a public service pension scheme;
b
an occupational pension scheme which is a contracted-out scheme in relation to any employment;
c
a personal pension scheme which is an appropriate scheme; and
d
an occupational or personal pension scheme which satisfies prescribed requirements.
3
Subsection (1) applies whether the trusts or dispositions in question are created or made before or after this section first applies to the scheme, but this section does not validate with retrospective effect any trusts or dispositions which the rules of law relating to perpetuities (including, where applicable, section 3(1) of the M56Perpetuities and Accumulations Act 1964 (“wait and see”)) already require to be treated as void before this section applies to the scheme.
4
Regulations under subsection (2)(d) may require a scheme—
a
to contain provisions in any prescribed form, or to any prescribed effect; or
b
to have tax-exemption or tax-approval or to be such a scheme that it may be expected to qualify for tax-exemption or tax-approval.
5
Such regulations may be so framed that, in prescribed circumstances, the requirements can be treated as satisfied if application has been duly made to the Inland Revenue with a view to obtaining tax-approval for the scheme.
6
Regulations may include provision by which a scheme (other than a public service pension scheme) to which this section ceases to apply may nevertheless be treated as continuing to be a scheme to which it applies for a period of two years from its ceasing to be such a scheme, or for such longer period as the F83... F83Secretary of StateF83... F83considers to be reasonable in the case of a particular scheme.
7
If this section ceases to apply to a scheme, trusts created and dispositions made under it or for its purposes shall then again be subject to the rules of law relating to perpetuities as if this section had never applied to it.
8
Subsection (7) is without prejudice to any rights which vested while this section applied.
F19
Regulations may provide for a scheme, whose fund was registered under the M57Superannuation and other Trust Funds (Validation) Act 1927 immediately before the repeal of that Act took effect, to retain the benefit of that Act subject to prescribed conditions and either indefinitely or for a prescribed period.
Special classes of earner
I1164 Crown employment.
1
Subject to subsection (3), the following provisions shall apply to persons employed by or under the Crown in like manner as if such persons were employed by a private person—
a
Chapter I of Part IV and the other provisions of this Act, so far as they relate to the preservation requirements;
2
A person who is employed by or under the Crown shall be treated as an employed earner for the purposes of sections 7, 9, 26 to 34, 38, 43 to 45 (so far as they relate to personal pension schemes), section 48 (so far as it relates to minimum contributions), section 50 (so far as it relates to personal pension schemes), section 54, sections 55 to 64 (so far as they relate to personal pension protected rights premiums), section 111 (and Part VIII and section 153 so far as they have effect for the purposes of section 111), sections 117, 154 and 155 and section 159 (so far as it relates to protected rights payments) and sections 160 and 166.
3
So far as subsection (1) relates to the provisions within paragraph (b) of that subsection, it does not apply to a person who is serving as a member of Her Majesty’s forces.
4
Subject to subsections (3) and (5), a person who is serving as a member of Her Majesty’s forces shall, while he is so serving, be treated for the purposes of the provisions within subsection (1)(b) and those within subsection (2) (except for sections 154 and 166) as an employed earner in respect of his membership of those forces.
5
The Secretary of State may make regulations modifying sections 41, 42, 46(1), 47(2) and (5) and 48 in such manner as he thinks proper, in their application to persons who are or have been members of Her Majesty’s forces.
F386
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
For the purposes of this section Her Majesty’s forces shall be taken to consist of such establishments and organisations as may be prescribed, being establishments and organisations in which persons serve under the control of the Defence Council.
I1165 Application of certain provisions to cases with foreign element.
1
Regulations may modify the provisions mentioned in subsection (2) in such manner as the Secretary of State thinks proper, in their application to any person who is, or has been, or is to be—
a
employed on board any ship, vessel, hovercraft or aircraft;
b
outside Great Britain at any prescribed time or in any prescribed circumstances; or
c
in prescribed employment in connection with continental shelf operations.
2
The provisions referred to in subsection (1) are—
a
F241Part III, section 111 (and Part VIII and section 153 so far as they have effect for the purposes of section 111), sections 117, 154 and 155 and section 159 (so far as it relates to protected rights payments) and sections 160 and 166; and
b
sections 41 and 42, subsections (1), (6) and (7) of section 46 (and subsection (8) of that section so far as it has effect for the purposes of those subsections), and sections 47(2) and (5) and 48.
3
Subject to subsection (4), regulations under subsection (1) may in particular provide—
a
for any of those provisions to apply to any such person, notwithstanding that it would not otherwise apply;
b
for any such provision not to apply to any such person, notwithstanding that it would otherwise apply;
c
for excepting any such person from the application of any such provision where he neither is domiciled nor has a place of residence in any part of Great Britain;
d
for the taking of evidence, for the purposes of the determination of any question arising under any such provision, in a country or territory outside Great Britain, by a British consular official or such other person as may be determined in accordance with regulations.
4
Paragraph (b) of subsection (3) does not apply as respects the application of the provisions mentioned in subsection (2)(b) and paragraphs (a), (c) and (d) of that subsection do not apply as respects the application of those provisions to such persons as are mentioned in paragraph (b) or (c) of subsection (1).
5
Without prejudice to the generality of subsection (1)(c), regulations made by virtue of that subsection as respects any provision mentioned in subsection (2)(b) may provide for that provision to apply to such a person as is mentioned in that subsection notwithstanding that he does not fall within the description of an employed or self-employed earner or does not fulfil conditions as to residence or presence in Great Britain.
6
Without prejudice to the generality of section 153(2)(c), regulations may modify Chapter I of Part IV in relation to schemes with any overseas element, that is to say, schemes established, or relating to employment, or with parties domiciled, resident or carrying on business, in any part of the world outside the United Kingdom, or otherwise not confined in their operation to the United Kingdom.
7
Chapter II of Part VII and section 157 do not apply—
a
to employment where under his contract of employment the employee ordinarily works outside the territory of the member States, or
b
to employment as master or as a member of the crew of a fishing vessel where the employee is remunerated only by a share in the profits or gross earnings of the vessel,
and sections 124 and 125 do not apply to employment as a merchant seaman, but F39section 201 of the Employment Rights Act 1996 (power to extend employment protection legislation) applies to Chapter II of Part VII and section 157 as it does to the provisions of that Act.
8
In this section—
“continental shelf operations” means any activities which, if paragraphs (a) and (d) of F285subsection (8) of section 11 of the Petroleum Act 1998 (application of civil law to certain off-shore activities) were omitted, would nevertheless fall within subsection (2) of that section; and
“employment as a merchant seaman” has the meaning given in F40section 199(5) of the Employment Rights Act 1996.
Reciprocity with other countries
I1166 Reciprocity with other countries.
1
For the purpose of giving effect—
a
to any agreement with the government of a country outside the United Kingdom providing for reciprocity in matters relating to payments for purposes similar or comparable to the purposes of this Act, or
b
to any such agreement as it would be if it were altered in accordance with proposals to alter it which, in consequence of any change in the law of Great Britain, the government of the United Kingdom has made to the other government in question,
Her Majesty may by Order in Council make provision for modifying or adapting this Act in its application to cases affected by the agreement or proposed alterations.
2
An Order in Council made by virtue of subsection (1) may, instead of or in addition to making specific modifications or adaptations, provide generally that this Act shall be modified to such extent as may be required to give effect to the provisions contained in the agreement or, as the case may be, alterations in question.
3
The modifications of this Act which may be made by virtue of subsection (1) include provision—
a
for securing that acts, omissions and events having effect for the purposes of the law of the country in respect of which the agreement is made have a corresponding effect for the purposes of this Act (but not so as to confer a right to a double benefit);
b
for determining in cases where rights accrue both under this Act and under the law of that country, which of those rights is to be available to the person concerned; and
c
for making any necessary financial adjustments.
4
An Order in Council made by virtue of subsection (1) which modifies or adapts any of the provisions referred to in section 164 may, in particular, provide for the Secretary of State to make payments for any period beginning on or after 6th April 1987 and may make provision with respect to any matters relating to payments so made.
5
Application of provisions relating to social security administration
I1167 Application of general provisions relating to administration of social security.
1
The M58Social Security Administration Act 1992 shall apply as if references to that Act in the provisions mentioned in subsection (2) included references to the provisions referred to in section 164(1)(b) of this Act (in this section referred to as “the relevant provisions”).
2
The provisions referred to in subsection (1) are the following provisions of the M58Social Security Administration Act 1992—
section 116 (legal proceedings)
section 125 (regulations as to notification of deaths)
F372...
section 180 (payment of travelling expenses by the Secretary of State).
F354section 180A (payment of travelling expenses by Inland Revenue).
F3633
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
F364The references in section 59(2)(a) of the M58 Social Security Administration Act 1992 (procedure regulations) and in section 61(1)(a) of that Act (regulations as to matters arising pending determinations) to Parts II to IV of the M59Social Security Contributions and Benefits Act 1992 and to Part I of that Act shall be taken respectively to include a reference to section 46 and a reference to sections 41 and 42 of this Act.
5
Section 124 of the M58Social Security Administration Act 1992 (provisions relating to age, death and marriage) shall apply as if the information mentioned in subsection (1) of that section included information for the purposes of the relevant provisions.
6
Section 121 of the M59Social Security Contributions and Benefits Act 1992 (treatment of certain marriages) shall apply to the relevant provisions.
General provisions as to offences
I1C68168 Breach of regulations.
F75Regulations under any provision of this Act (other than Chapter II of Part VII) may provide for the contravention of, or failure to comply with any provision contained in regulations under any such provision to be an offence under this Act and for the recovery on summary conviction for any such offence of penalties not exceeding—
a
for any one offence, level 3 on the standard scale; or
b
for an offence of continuing any such contravention or failure after conviction, £40 for each day on which it is so continued.
F751
Regulations under any provision of this Act (other than Chapter II of Part VII) may make such provision as is referred to in subsection (2) or (4) for the contravention of any provision contained in regulations made or having effect as if made under any provision of this Act.
2
The regulations may provide for the contravention to be an offence under this Act and for the recovery on summary conviction of a fine not exceeding level 5 on the standard scale.
3
An offence under any provision of the regulations may be charged by reference to any day or longer period of time; and a person may be convicted of a second or subsequent offence under such a provision by reference to any period of time following the preceding conviction of the offence.
4
The regulations may provide for a person who has contravened the provision to pay to the Regulatory Authority, within a prescribed period, a penalty not exceeding an amount specified in the regulations; and the regulations must specify different amounts in the case of individuals from those specified in other cases and any amount so specified may not exceed the amount for the time being specified in the case of individuals or, as the case may be, others in section 10(2)(a) of the Pensions Act 1995.
5
Regulations made by virtue of subsection (4) do not affect the amount of any penalty recoverable under that subsection by reason of an act or omission occurring before the regulations are made.
6
Where—
a
apart from this subsection, a penalty under subsection (4) is recoverable from a body corporate or Scottish partnership by reason of any act or omission of the body or partnership as a trustee of a trust scheme, and
b
the act or omission was done with the consent or connivance of, or is attributable to any neglect on the part of, any persons mentioned in subsection (7),
such a penalty is recoverable from each of those persons who consented to or connived in the act or omission or to whose neglect the act or omission was attributable.
7
The persons referred to in subsection (6)(b)—
a
in relation to a body corporate, are—
i
any director, manager, secretary, or other similar officer of the body, or a person purporting to act in any such capacity, and
ii
where the affairs of a body corporate are managed by its members, any member in connection with his functions of management, and
b
in relation to a Scottish partnership, are the partners.
8
Where the Regulatory Authority requires any person to pay a penalty by virtue of subsection (6), they may not also require the body corporate, or Scottish partnership, in question to pay a penalty in respect of the same act or omission.
9
A penalty under subsection (4) is recoverable by the Authority and any such penalty recovered by the Authority must be paid to the Secretary of State.
10
Where by reason of the contravention of any provision contained in regulations made, or having effect as if made, under this Act—
a
a person is convicted of an offence under this Act, or
b
a person pays a penalty under subsection (4),
then, in respect of that contravention, he shall not, in a case within paragraph (a), be liable to pay such a penalty or, in a case within paragraph (b), be convicted of such an offence.
11
In this section “contravention” includes failure to comply, and “Scottish partnership” means a partnership constituted under the law of Scotland.
168AOffence in connection with the Registrar
1
Any person who knowingly or recklessly provides the Registrar with information which is false or misleading in a material particular is guilty of an offence if the information—
a
is provided in purported compliance with a requirement under section 6, or
b
is provided otherwise than as mentioned in paragraph (a) above but in circumstances in which the person providing the information intends, or could reasonably be expected to know, that it would be used by the Registrar for the purpose of discharging his functions under this Act.
2
Any person guilty of an offence under subsection (1) is liable—
a
on summary conviction, to a fine not exceeding the statutory maximum,
b
on conviction on indictment, to imprisonment or a fine, or both
I1169 Offences by bodies corporate.
1
Where an offence under this Act which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and be liable to be proceeded against accordingly.
2
Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
General provisions as to determinations and appeals
I1C58C60170F361 Determination of questions by Secretary of State.F361Decisions and appeals
C55F3611
The questions to which section 17(1) of the M60Social Security Administration Act 1992 (questions for determination by the Secretary of State) applies include—
a
any question as to the amount of a person’s guaranteed minimum for the purposes of section 13 or 17;
b
any question—
i
whether a F244contributions equivalent premium is payable or has been paid in any case or as to the amount of any such premium; or
ii
otherwise arising in connection with any F244contributions equivalent premium;
c
any question whether for the purposes of this Act a cash sum paid or an alternative arrangement made under the F484Financial Services Compensation Scheme provides the whole or any part of the guaranteed minimum pension to which an earner or an earner’s widow or widower was entitled under a contracted-out scheme; F246...
d
e
any question whether an employment is, or is to be treated, for the purposes of the Pension Schemes Act 1993 as contracted-out employment or as to the persons in relation to whom, or the period for which, an employment is, or is to be treated, for the purposes of that Act as such employment.
F1007
Sections 18 and 19 of the Social Security Administration Act 1992 (appeals and reviews) shall have effect as if the questions mentioned in subsection (1) of section 17 of that Act included—
a
any question arising in connection with the issue, cancellation or variation of contracting-out certificates or appropriate scheme certificates, not being a question mentioned in subsection (1)(e) above, and
b
any other question arising under this Act which falls to be determined by the Secretary of State, not being a question mentioned in that subsection.
8
Regulations may make provision with respect to the procedure to be adopted on any application for a review made under section 19 of that Act by virtue of subsection (7) above and generally with respect to such applications and reviews, but may not prevent such a review being entered upon without an application being made
F3611
Section 2 (use of computers) of the Social Security Act 1998 (“the 1998 Act”) applies as if, for the purposes of subsection (1) of that section, this Act were a relevant enactment.
2
F360It shall be for an officer of the Inland Revenue—
a
to make any decision that falls to be made under or by virtue of Part III of this Act, other than a decision which under or by virtue of that Part falls to be made by the Secretary of State;
b
to decide any issue arising in connection with payments under section 7 of the Social Security Act 1986 (occupational pension schemes becoming contracted-out between 1986 and 1993); and
c
to decide any issue arising by virtue of regulations made under paragraph 15 of Schedule 3 to the Social Security (Consequential Provisions) Act 1992 (continuing in force of certain enactments repealed by the Social Security Act 1973).
3
F360In the following provisions of this section a “relevant decision” means any decision which under subsection (2) falls to be made by an officer of the Inland Revenue, other than a decision under section 53 or 54.
4
F360Sections 9 and 10 of the 1998 Act (revision of decisions and decisions superseding earlier decisions) apply as if—
a
any reference in those sections to a decision of the Secretary of State under section 8 of that Act included a reference to a relevant decision; and
b
any other reference in those sections to the Secretary of State were, in relation to a relevant decision, a reference to an officer of the Inland Revenue.
5
Regulations may make provision—
F368a
generally with respect to the making of relevant decisions;
b
with respect to the procedure to be adopted on any application made under section 9 or 10 of the 1998 Act by virtue of subsection (4); and
c
generally with respect to such applications, revisions under section 9 and decisions under section 10;
but may not prevent F369a revision under section 9 or decision under section 10 being made without such an application.
6
Section 12 of the 1998 Act (appeal to appeal tribunal) applies as if, for the purposes of subsection (1)(b) of that section, a relevant decision were a decision of the Secretary of State falling within Schedule 3 to the 1998 Act.
7
The following provisions of the 1998 Act (which relate to decisions and appeals)—
sections 13 to 18,
sections 25 and 26,
section 28, and
Schedules 4 and 5,
shall apply in relation to any appeal under section 12 of the 1998 Act by virtue of subsection (6) above as if any reference to the Secretary of State were a reference to an officer of the Inland Revenue.
I1171 Questions arising in proceedings.
1
Where in any proceedings—
a
for an offence under this Act; or
b
involving any question as to the payment of a F247contributions equivalent premium;
F365any relevant decision as defined by section 170(3) is made by the Inland Revenue, the decision shall be conclusive for the purpose of the proceedings.
F3662
If—
a
any such decision is necessary for the determination of the proceedings, and
b
the decision of the Inland Revenue has not been obtained or an application with respect to the decision has been made under section 9 or 10 of the Social Security Act 1998,
the decision shall be referred to the Inland Revenue to be made in accordance (subject to any necessary modifications) with Chapter II of Part I of that Act.
3
Subsection (1) does not apply where, in relation to the decision—
a
an appeal has been brought but not determined,
b
an application for leave to appeal has been made but not determined,
c
an appeal has not been brought (or, as the case may be, an application for leave to appeal has not been made) but the time for doing so has not yet expired, or
d
an application has been made under section 9 or 10 of that Act.
4
In a case falling within subsection (3) the court shall adjourn the proceedings until such time as the final decision is known and that decision shall be conclusive for the purposes of the proceedings.
171AF362Reports by Inland Revenue.
1
The Inland Revenue shall prepare, either annually or at such times or intervals as may be prescribed, a report on the standards achieved by their officers in the making of decisions against which, by virtue of section 170(6), an appeal lies to an appeal tribunal constituted under Chapter I of Part I of the Social Security Act 1998.
2
Any report under this section—
a
may be included in any annual report by the Inland Revenue of which a copy is laid before each House of Parliament, or
b
may be annexed to any report of the Secretary of State under section 81 of the Social Security Act 1998.
3
A copy of every report under this section shall be laid before each House of Parliament, unless the report is included in, or annexed to, a report of which a copy is so laid.
F248E3I1172 Review of the Board’s determinations.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F249I1173 References and appeals from the Board.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Financial provisions
I1174 Grants by the Board to advisory bodies etc.
1
The F50Regulatory Authority may make grants on such terms and conditions as they think fit to any person or body of persons providing advice or assistance, or carrying out other prescribed functions, in connection with occupational or personal pensions.
2
The Secretary of State may pay the F50Regulatory Authority such sums as he may think fit towards any expenditure of theirs in making grants under this section.
I1C63175F46Levies towards certain expenditure
F461
For the purpose of meeting expenditure—
a
under section 6,
b
under Part X and section 174, or
c
of the Regulatory Authority (including the establishment of the authority and, if the authority are appointed as Registrar under section 6 of this Act, their expenditure as Registrar),
regulations may make provision for imposing levies in respect of prescribed occupational or prescribed personal pension schemes.
2
Any levy imposed under subsection (1) is payable to the Secretary of State by or on behalf of—
a
the administrators of any prescribed public service pension scheme,
b
the trustees or managers of any other prescribed occupational or prescribed personal pension scheme, or
c
any other prescribed person,
at prescribed rates and at prescribed times.
3
Regulations made by virtue of subsection (1)—
a
in determining the amount of any levy in respect of the Regulatory Authority, must take account (among other things) of any amounts paid to the Secretary of State under section 168(4) of this Act or section 10 of the Pensions Act 1995, and
b
in determining the amount of expenditure in respect of which any levy is to be imposed, may take one year with another and, accordingly, may have regard to expenditure estimated to be incurred in current or future periods and to actual expenditure incurred in previous periods (including periods ending before the coming into force of this subsection).
C634
Regulations may make provision for imposing a levy in respect of prescribed occupational pension schemes for the purpose of meeting expenditure of the Pensions Compensation Board (including the establishment of the Board).
C635
Any levy imposed under subsection (4) is payable to the Board by or on behalf of—
a
the trustees of any prescribed occupational pension scheme, or
b
any other prescribed person,
at prescribed times and at a rate, not exceeding the prescribed rate, determined by the Board.
C636
In determining the amount of expenditure in respect of which any levy under subsection (4) is to be imposed, the Board, and regulations made by virtue of subsection (5), may take one year with another and, accordingly, may have regard to expenditure estimated to be incurred in current or future periods and to actual expenditure incurred in previous periods (including periods ending before the coming into force of this subsection).
C637
Notice of the rates determined by the Board under subsection (5) must be given to prescribed persons in the prescribed manner.
C638
An amount payable by a person on account of a levy imposed under this section shall be a debt due from him to the appropriate person, that is—
a
if the levy is imposed under subsection (1), the Secretary of State, and
b
if the levy is imposed under subsection (4), the Board,
and an amount so payable shall be recoverable by the appropriate person accordingly or, if the appropriate person so determines, be recoverable by the Registrar on behalf of the appropriate person.
C639
Without prejudice to the generality of subsections (1) and (4), regulations under this section may include provision relating to—
a
the collection and recovery of amounts payable by way of levy under this section, or
b
the circumstances in which any such amount may be waived.
I1176 Fees for official services to schemes.
Where at the request of the trustees or managers of an occupational pension scheme or a personal pension scheme or of any employer of earners who are members of such a scheme, official services are provided in connection with the operation or administration of the scheme F250by the Secretary of State, the Secretary of State may require the payment of fees for the provision of those services.
I1177 General financial arrangements.
1
Subject to the following provisions of this section, all expenses incurred by the Secretary of State F343or the Inland Revenue under this Act shall be paid out of money provided by Parliament except so far as they may be required by any enactment to be paid or borne in some other way.
2
There shall be paid out of the National Insurance Fund—
a
minimum contributions paid by the F344Inland Revenue under section 43;
b
payments by F345the Secretary of State under section 124.
3
Subject to subsection (4), there shall be paid out of the National Insurance Fund into the Consolidated Fund—
a
sums equal to the amount of any expenses incurred by the Secretary of State (or by persons acting on his behalf) in exercising his functions under Chapter II of Part VII and section 157;
b
such sums as the Secretary of State may estimate to be the amount of the administrative expenses of the Secretary of State or any government department in carrying into effect the remaining provisions of this Act, other than—
i
ii
sections 7, 9, 26 to 34, 38 and 50 (so far as they relate to personal pension schemes), section 54, F253... section 111 (and Part VIII and section 153 so far as they have effect for the purposes of section 111), sections 117, 154 and 155 and section 159 (so far as it relates to protected rights payments) and sections 160 and 166.
F346c
such sums as the Inland Revenue may estimate to be the amount of their administrative expenses in exercising their functions under Part III.
4
The sums payable under subsection (3)(b)—
a
shall be estimated in accordance with any directions given by the Treasury and (except in the case of functions relating to minimum contributions) shall exclude such categories of expenses as the Treasury may direct, or any enactment may require, to be so excluded; and
b
shall be payable at such times and in such manner as the Treasury may direct.
5
There shall be paid into the Consolidated Fund—
a
subject to subsection (6), so far as it relates to payments out of money provided by Parliament, any sum recovered by the Secretary of State F347or the Inland Revenue under or by virtue of the provisions within subsection (3)(b)(ii); and
b
all fees paid to the Registrar.
6
So far as any such sum relates to a payment out of the National Insurance Fund, it shall be paid into that Fund.
7
There shall also be paid into the National Insurance Fund—
a
sums recovered under section F37941(1E), 42A(2D) or (5) or 43(5) or (6);
F251b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
any sum recovered by the Secretary of State in exercising any right or pursuing any remedy which is his by virtue of section 127; and
d
any sums received by F348the Inland Revenue by way of such payments as are mentioned in paragraph 5(4) of Schedule 2.
Part XII Supplementary Provisions
Interpretation
I1178 Trustees and managers of schemes.
The Secretary of State may by regulations provide—
a
who is to be treated as a manager of an occupational pension scheme for any of the purposes of the provisions of this Act (except Chapter II of Part VII or section 157), the Social Security Acts 1975 to 1991, or Part VI of the M62Social Security Administration Act 1992 F435F501... F436, section 25D of the Matrimonial Causes Act 1973, section 12A of the Family Law (Scotland) Act 1985 F459or Part III or IV of the Welfare Reform and Pensions Act 1999F459, Part III or IV of the Welfare Reform and Pensions Act 1999 or Part II of Schedule 5 to the Child Support, Pensions and Social Security Act 2000.; F257...
b
who is to be treated as a trustee of a scheme for the purposes of F255... Chapter I of Part IV, Part VIII so far as it applies for the purposes of Chapter I of Part IV, F434Chapter I of Part IVA, sections F256... 153(2), 158(1) to (5), 162, 163, F255...and 176F255... F500or sections 22 to 26C of the Pensions Act 1995.
I1179 Linked qualifying service.
1
Subject to subsections (2) to (4), for the purposes of this Act any period of an earner’s service in an employment is linked qualifying service in relation to a later period of service (whether in the same or another employment) if—
a
under the rules of a scheme applying to him in the earlier period of service—
i
there was made a transfer of his accrued rights under that scheme (including any transfer credits allowed under the scheme) to another scheme applying to him in the later period of service; or
ii
those rights were secured by a policy of insurance or an annuity contract and were subsequently transferred to another scheme applying to him in the later period of service; and
b
in consequence of the transfer of his accrued rights to the second scheme, there are (or were) allowed to him transfer credits under the rules of that other scheme.
2
For any service to be taken into account as linked qualifying service, it must be actual service and no regard shall be had to any scheme rule which provides for service to be treated for any purposes of benefit or otherwise as longer or shorter than it actually was.
3
Only so much of the earlier period as is a period of service in respect of which there accrued under the first scheme any of the rights transferred to the second scheme shall be linked qualifying service in relation to the later period of service.
4
For the purposes of Chapter I of Part IV, as respects any case where the rules of the scheme provide—
a
that an earner is not entitled to become a member unless he satisfies specified conditions, but
b
that, if he becomes a member, rights are to accrue to him in respect of periods of service before he satisfied any such conditions,
regulations may provide for any such periods to be treated, in such cases and to such extent as may be prescribed, as linked qualifying service with later periods of service.
I1180 Normal pension age.
1
In this Act “normal pension age”, in relation to a scheme and a member’s pensionable service under it, means—
a
in a case where the scheme provides for the member only a guaranteed minimum pension, the earliest age at which the member is entitled to receive the guaranteed minimum pension on retirement from any employment to which the scheme applies; and
b
in any other case, the earliest age at which the member is entitled to receive benefits (other than a guaranteed minimum pension) on his retirement from such employment.
2
For the purposes of subsection (1) any scheme rule making special provision as to early retirement on grounds of ill-health or otherwise is to be disregarded.
180AF464Insurer and long-term insurance business
1
In this Act “insurer” means—
a
a person who has permission under Part 4 of the Financial Services and Markets Act 2000 to effect or carry out contracts of insurance, or
b
an EEA firm of the kind mentioned in paragraph 5(d) of Schedule 3 to that Act, which has permission under paragraph 15 of that Schedule (as a result of qualifying for authorisation under paragraph 12 of that Schedule) to effect or carry out contracts of insurance.
2
In this Act “long term insurance business” means business which consists of the effecting or carrying out of contracts of long-term insurance.
3
This section must be read with—
a
section 22 of the Financial Services and Markets Act 2000;
b
any relevant order under that section; and
c
Schedule 2 to that Act.
I1181 General interpretation.
F801
In this Act, unless the context otherwise requires—
F258...
“age”, in relation to any person, shall be construed so that—
- a
he is over or under a particular age if he has or, as the case may be, has not attained that age;
- b
he is between two particular ages if he has attained the first but not the second;
- a
“appropriate scheme certificate” and references to an appropriate scheme shall be construed in accordance with section 7;
F258...
“Category A retirement pension” and “Category B retirement pension” mean the retirement pensions of those descriptions payable under Part II of the M63Social Security Contributions and Benefits Act 1992;
“contract of service” has the same meaning as in section 122(1) of the Social Security Contributions and Benefits Act 1992;
“contracted-out employment” shall be construed in accordance with section 8;
F258...
“contracting-out certificate” and references to a contracted-out scheme and to contracting-out shall be construed in accordance with section 7;
“contributions equivalent premium” has the meaning given in F259section 55(2) ;
“earner” and “earnings” shall be construed in accordance with sections 3, 4 and 112 of the Social Security Contributions and Benefits Act 1992;
“earnings factors” shall be construed in accordance with sections 22 and 23 of the Social Security Contributions and Benefits Act 1992;
F386“employed earner” and “self-employed earner” have the meanings given by section 2 of the Social Security Contributions and Benefits Act 1992;
“employee” means a person gainfully employed in Great Britain either under a contract of service or in an office (including an elective office) with emoluments chargeable to income tax under Schedule E;
“employer” means—
- a
in the case of an employed earner employed under a contract of service, his employer;
- b
in the case of an employed earner employed in an office with emoluments—
- i
such person as may be prescribed in relation to that office; or
- ii
if no person is prescribed, the government department, public authority or body of persons responsible for paying the emoluments of the office;
- a
“employment” includes any trade, business, profession, office or vocation and “employed” shall be construed accordingly except in the expression “employed earner”;
F485“Financial Services Compensation Scheme” means the Financial Services Compensation Scheme referred to in section 213(2) of the Financial Services and Markets Act 2000.
F22...
“guaranteed minimum pension” has the meaning given in section 8(2);
“independent trade union” has the same meaning as in the M64Trade Union and Labour Relations (Consolidation) Act 1992;
“industrial tribunal” means a tribunal established or having effect as if established under F41section 1(1) of the Industrial Tribunals Act 1996;
“the Inland Revenue” means the Commissioners of Inland Revenue;
F486...
F258...
“linked qualifying service” has the meaning given in section 179;
“long-term benefit” has the meaning given in section 20(2) of the M65Social Security Contributions and Benefits Act 1992;
“lower earnings limit” and “upper earnings limit” shall be construed in accordance with section 5 of the Social Security Contributions and Benefits Act 1992 and “current”, in relation to those limits, means for the time being in force;
“minimum contributions” shall be construed in accordance with sections 43 to 45;
“minimum payment” has the meaning given in section 8(2);
“modifications” includes additions, omissions and amendments, and related expressions shall be construed accordingly;
“money purchase benefits”, in relation to a member of a personal or occupational pension scheme or the widow or widower of a member of such a scheme, means benefits the rate or amount of which is calculated by reference to a payment or payments made by the member or by any other person in respect of the member and F43which fall within section 181B;
“money purchase contracted-out scheme” has the meaning given in section 8(1)(a)(ii);
“money purchase scheme” means a pension scheme under which all the benefits that may be provided are money purchase benefits;
“normal pension age” has the meaning given in section 180;
“occupational pension scheme” has the meaning given in section 1;
F458“overseas arrangement” means a scheme or arrangement which—
- (a)
has effect, or is capable of having effect, so as to provide benefits on termination of employment or on death or retirement to or in respect of earners;
- (b)
is administered wholly or primarily outside Great Britain;
- (c)
is not an appropriate scheme; and
- (d)
is not an occupational pension scheme;
- (a)
F437“pension credit” means a credit under section 29(1)(b) of the Welfare Reform and Pensions Act 1999 or under corresponding Northern Ireland legislation;
F12“pensionable age”—
- (a)
so far as any provisions (other than sections 46 to 48) relate to guaranteed minimum pensions, means the age of 65 in the case of a man and the age of 60 in the case of a woman, and
- (b)
in any other case, has the meaning given by the rules in paragraph 1 of Schedule 4 to the Pensions Act 1995
- (a)
“pensionable service” has the meaning given in section 70(2);
F398“pension debit” means a debit under section 29(1)(a) of the Welfare Reform and Pensions Act 1999;
F258...
F258...
“personal pension scheme” has the meaning given in section 1;
“prescribe” means prescribe by regulations and “prescribed” shall be construed accordingly;
F380...
“the preservation requirements” has the meaning given in section 69(2);
“primary Class 1 contributions” and “secondary Class 1 contributions” have the same meanings as in the Social Security Contributions and Benefits Act 1992;
“protected rights” has the meaning given in section 10;
“public service pension scheme” has the meaning given in section 1;
“the register” has the meaning given in section 6;
“the Registrar” has the meaning given in section 6;
“regulations” means regulations made by the Secretary of State under this Act;
F514“the Regulatory Authority” means the Occupational Pensions Regulatory Authority;
“resources”, in relation to an occupational pension scheme, means the funds out of which the benefits provided by the scheme are payable from time to time, including the proceeds of any policy of insurance taken out, or annuity contract entered into, for the purposes of the scheme;
“rights”, in relation to accrued rights (within the meaning of section 73, 136 or 179) or transfer credits, includes rights to benefit and also options to have benefits paid in a particular form or at a particular time;
F438“safeguarded rights” has the meaning given in section 68A;
F383...
“short service benefit” has the meaning given in section 71(2);
F258...
“tax-exemption” and “tax-approval” mean respectively exemption from tax and approval of the Inland Revenue, in either case under any such provision of the Income Tax Acts as may be prescribed;
“tax week” means one of the successive periods in a tax year beginning with the first day of that year and every seventh day thereafter, the last day of a tax year (or, in a leap year, the last two days) being treated accordingly as a separate tax week;
“tax year” means the 12 months beginning with 6th April in any year;
“trade or business”, in relation to a public or local authority, includes the exercise and performance of the powers and duties of the authority;
“transfer credits” means rights allowed to an earner under the rules of an occupational pension scheme by reference to a transfer to that scheme of his accrued rights from another scheme (including any transfer credits allowed by that scheme);
F258...
“voluntary contributions requirements” has the meaning given in section 111(2);
“week” means a period of seven days beginning with Sunday;
“working life” has the meaning given in paragraph 5(8) of Schedule 3 to the M66Social Security Contributions and Benefits Act 1992.
2
References to employers in the provisions of this Act (other than sections 123 to 127, 157, F263and 160 (“the excluded provisions”)) are to be treated, in relation to persons within the application of an occupational pension scheme and qualifying or prospectively qualifying for its benefits, as including references to persons who in relation to them and their employment are treated by regulations as being employers for the purposes of those provisions.
3
Subject to any such regulations, references to an employer in any of the provisions of this Act (other than the excluded provisions or F260section 6, Chapter I of Part IV, Part VIII so far as it applies for the purposes of Chapter I of Part IV, sections F262... 153(2), 158(1) to (5), 162, 163, F261... and 176F261...) shall, in relation to an earner employed in an office with emoluments, be construed as references to—
a
such person as may be prescribed in relation to that office; or
b
if no person is prescribed, the government department, public authority or body of persons responsible for paying the emoluments of that office.
4
Regulations may for any purpose of any provision of this Act (other than the excluded provisions or section 6, 27, 28, 29, 31, 32, 43, 44, 111, 160, 164, 165 or 169) prescribe the persons who are to be regarded as members or prospective members of an occupational pension scheme and as to the times at which and the circumstances in which a person is to be treated as becoming, or as ceasing to be, a member or prospective member.
5
In sections 165 and 166—
a
references to the United Kingdom include references to the territorial waters of the United Kingdom; and
b
references to Great Britain include references to the territorial waters of the United Kingdom adjacent to Great Britain.
6
Any reference in section 185 or 186 to an order or regulations under this Act includes a reference to an order or regulations made under any provision of an enactment passed after this Act and directed to be construed as one with it; but this subsection applies only so far as a contrary intention is not expressed in the enactment so passed, and shall be without prejudice to the generality of any such direction.
7
In the application of section 158 F264... to Northern Ireland any reference to a government department is to be taken to be, or to include (as the context may require), a Northern Ireland department.
181BF42Money purchase benefits: supplementary
1
This section applies for the purposes of the definition of “money purchase benefits” in section 181(1).
2
A benefit other than a pension in payment falls within this section if its rate or amount is calculated solely by reference to assets which (because of the nature of the calculation) must necessarily suffice for the purposes of its provision to or in respect of the member.
3
A benefit which is a pension in payment falls within this section if—
a
its provision to or in respect of the member is secured by an annuity contract or insurance policy made or taken out with an insurer, and
b
at all times before coming into payment the pension was a benefit falling within this section by virtue of subsection (2).
4
For the purposes of subsection (2) it is immaterial if the calculation of the rate or amount of the benefit includes deductions for administrative expenses or commission.
5
In this section references to a pension do not include income withdrawal or dependants' income withdrawal (within the meaning of paragraphs 7 and 21 of Schedule 28 to the Finance Act 2004).
Subordinate legislation etc.
I1182 Orders and regulations (general provisions).
1
Any power under this Act to make regulations or orders (except a power of F265... the court to make orders) and the powers to make rules under sections 149(2) and 152(1) shall be exercisable by statutory instrument.
C712
Except in so far as this Act otherwise provides, any power conferred by it to make an Order in Council, regulations or an order (except an order under section 153(8)) may be exercised—
a
either in relation to all cases to which the power extends, or in relation to those cases subject to specified exceptions, or in relation to any specified cases or classes of case;
b
so as to make, as respects the cases in relation to which it is exercised—
i
the full provision to which the power extends or any less provision (whether by way of exception or otherwise),
ii
the same provision for all cases in relation to which the power is exercised, or different provision for different cases or different classes of case or different provision as respects the same case or class of case for different purposes of this Act,
iii
any such provision either unconditionally or subject to any specified condition,
and where such a power is expressed to be exercisable for alternative purposes it may be exercised in relation to the same case for any or all of those purposes; and any power to make an Order in Council, regulations or an order for the purposes of any one provision of this Act shall be without prejudice to any power to make an Order in Council, regulations or an order for the purposes of any other provision.
C713
Any power conferred by it to make an Order in Council, regulations or an order shall include power to make such incidental, supplementary, consequential or transitional provision as appears to Her Majesty or the authority making the regulations or order to be expedient for the purposes of the Order in Council, regulations or order.
C714
Any power conferred by this Act to make an order shall include power to vary or revoke any such order by a subsequent order.
C715
Any power conferred on the Secretary of State by any provision of this Act to make any regulations or order (except an order under section 153(8)), where the power is not expressed to be exercisable with the consent of the Treasury, shall if the Treasury so direct be exercisable only in conjunction with them.
I1183 Sub-delegation.
1
Without prejudice to any specific provisions in this Act, a power conferred by this Act to make an Order in Council, regulations or an order (other than regulations and orders made under F268... Chapter I of Part IV, Part VIII so far as it applies for the purposes of Chapter I of Part IV, sections F270... 153(2), 158(1) to (5), 162, 163, F268... and 176F268...) includes power to provide for a person to exercise a discretion in dealing with any matter.
F2692
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
Regulations under section 27(3), 63(2), F439, 97(1) and 101I may provide that the values there mentioned shall be calculated and verifiedF266...—
a
in such manner as may, in the particular case, be approved—
i
by a prescribed person;
ii
by a person with prescribed professional qualifications or experience; or
iii
by a person approved by the Secretary of State; or
b
in accordance with guidance prepared F271and from time to time revised by a prescribed body.
F267...
F267
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F267
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I1184 Consultation with Social Security Advisory Committee about regulations under s. 36(6).
1
Subject to section 173 of the M67Social Security Administration Act 1992 (cases where consultation not required), where the Secretary of State proposes to make regulations under section 36(6), he shall refer the proposals, in the form of draft regulations or otherwise, to the Social Security Advisory Committee (“the Committee”).
2
The Committee shall consider any proposals referred to it by the Secretary of State under subsection (1) and shall make to the Secretary of State a report containing such recommendations with respect to the subject-matter of the proposals as the Committee thinks appropriate.
3
If after receiving a report of the Committee the Secretary of State lays before Parliament regulations which comprise the whole or part of the subject-matter of the proposals referred to the Committee, he shall lay with the regulations a copy of the Committee’s report and a statement showing—
a
the extent (if any) to which he has in framing the regulations given effect to the Committee’s recommendations; and
b
in so far as effect has not been given to them, his reasons why not.
I1185 Consultations about other regulations.
1
F273Subject to subsection (2), before the Secretary of State makes”, and for the words from “refer the proposals” to the end there is substituted “consult such persons as he may consider appropriate any regulations for the purposes of Parts I to VI, Chapter F272... III of Part VII, Part VIII, IX or X or section 153, 154, 155, 156, 160, 162, 163, 174 or 175 of this Act he shall refer the proposals, in the form of draft regulations or otherwise, to the Board.
2
Subsection (1) does not apply to—
a
regulations prescribing actuarial tables; or
b
regulations made for the purpose only of consolidating other regulations revoked by them; or
c
regulations under section 36(6).
F274d
regulations in the case of which the Secretary of State considers consultation inexpedient because of urgency, or
e
regulations which—
i
state that they are consequential upon a specified enactment, and
ii
are made before the end of the period of six months beginning with the coming into force of that enactment,
F2753
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2754
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
In relation to any regulations required or authorised under this Act to be made by the Secretary of State in conjunction with the Treasury, any reference in F276subsection (1) to the Secretary of State shall be construed as a reference to him and the Treasury acting jointly.
F2776
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
The power of the Secretary of State to make regulations under section 162 of this Act shall be exercisable only after consultation with the F487Financial Services Authority or, if the matter concerns section 464 of the Income and Corporation Taxes Act 1988, the Commissioners of the Inland Revenue.
8
The power of the Secretary of State to make regulations under F370section 170(5) shall be exercisable only after consultation with the Council on Tribunals.
9
Before making any regulations under paragraph 7 of Schedule 2 the Secretary of State shall consult with such bodies concerned with employments of the class in question as appear to him fairly to represent the interests of the employers and earners in those employments.
I1186 Parliamentary control of orders and regulations.
1
Subject to subsections (2) and (3), a statutory instrument which contains (whether alone or with other provisions) any regulations or order made under this Act by the Secretary of State shall be subject to annulment in pursuance of a resolution of either House of Parliament.
2
Subsection (1) shall not apply to any order which under any provision of this Act is required to be laid before Parliament after being made or is subject to a requirement that a draft of the instrument shall be laid before and approved by a resolution of each House of Parliament or to any order made under section 193 or paragraph 1 of Schedule 9.
3
Subject to subsection (4), a statutory instrument which contains (whether alone or with other provisions)—
a
regulations made by virtue of section 49, or
b
an order under section 153(8), or
c
regulations made by virtue of subsection (1)(a) of section 165 applying such provisions as mentioned in subsection (2)(b) of that section, F76or
d
regulations made by virtue of section 168(2)
shall not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
4
Subsection (3) does not apply to such regulations as mentioned in paragraph (a) or (c) of that subsection if—
a
they are made for the purpose only of consolidating regulations which they revoke, or
b
so far as they are made under powers conferred by the provisions mentioned in that paragraph, they only replace provisions of previous regulations with new provisions to the same effect.
5
In the case of any regulations laid before Parliament at a time when Parliament is not sitting, the requirements of section 184(3)F278... shall be deemed to be satisfied as respects either House of Parliament if a copy of the report and the statement in question are laid before that House not later than the second day on which the House sits after the laying of the regulations.
F373I1187 Northern Ireland Constitution Act 1973: “reserved matters”.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Supplemental provisions
188 Repeals.
I21
The enactments specified in Parts I, II and III of Schedule 5 are repealed to the extent specified in the third column.
I32
The subordinate legislation specified in Part IV of that Schedule is revoked to the extent specified in the third column.
I33
The repeals and revocations have effect subject to any relevant savings in Schedule 6.
I4189 Transitional provisions and savings.
1
Schedule 6 (which makes transitional provision and contains savings in connection with the repeals and revocations made by this Act) shall have effect.
2
Nothing in that Schedule affects the general operation of section 16 of the M68Interpretation Act 1978 (general savings implied on repeal).
I5190 Prospective and consequential amendments.
Schedule 7 (which re-enacts or makes consequential amendments of provisions which make prospective amendments of enactments including those repealed by this Act, so that the re-enacted or amended provisions prospectively amend this Act and other enactments) and Schedule 8 (which makes other consequential amendments) shall have effect, subject to any relevant transitional provisions in Schedule 6.
191 Transitory modifications.
Schedule 9 (which makes transitory modifications of this Act pending the commencement of the provisions there mentioned) shall have effect.
192 Extent.
1
Where any enactment repealed or amended by this Act extends to any part of the United Kingdom, the repeal or amendment extends to that part, except that the repeals in Part III of Schedule 5 do not extend to Northern Ireland.
2
The following provisions of this Act extend to Northern Ireland—
F279section 1,
F513...
section 145 (except subsections (4) and (5)(b)),
section 154 (as it has effect for the purposes of provisions extending to Northern Ireland),
F280...
section 179,
sections 181 to 183 (as they have effect for those purposes),
sections 185 and 186 (as they have effect for those purposes),
section 187,
sections 188 to 191 (as they have effect for those purposes, but subject to subsection (1)),
this section,
section 193,
paragraph 17 of Schedule 6.
3
Except as provided by subsection (2), this Act does not extend to Northern Ireland.
193 Short title and commencement.
1
This Act may be cited as the Pension Schemes Act 1993.
2
Subject to the provisions of Schedule 9, this Act shall come into force on such day as the Secretary of State may by order appoint.
3
As respects the coming into force of—
a
Part II of Schedule 5 and section 188(1) so far as it relates to it; or
b
Schedule 7 and section 190 so far as it relates to it,
an order under subsection (2) may appoint different days from the day appointed for the other provisions of this Act or different days for different purposes.
Pt. III power to modify conferred by Social Security Administration Act 1992 (c. 5), s. 148 (as read with Pensions Act 1995 (c. 26), ss. 128(3)(4), 180(2) (with s. 128(5)(6)); Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 33(2)-(4), 86(1)(b)(2))