Pension Schemes (Northern Ireland) Act 1993

115 Requirement for independent trustee where employer becomes insolvent, etc. N.I.

(1) This section applies in relation to an occupational pension scheme which is constituted by trust deed—

(a) if a person (“the practitioner”) commences to act as an insolvency practitioner in relation to a company which, or an individual who, is the employer of persons in the description or category of employment to which the scheme relates; or

(b) if the official receiver becomes—

(i) the liquidator or provisional liquidator of a company which is the employer of any such persons, or

(ii) the receiver and the manager, or the trustee, of the estate of a bankrupt who is the employer of any such persons.

(2) If and so long as this section applies to a scheme, subject to subsection (5), it shall be the duty of the practitioner or official receiver—

(a) to satisfy himself that at all times at least one of the trustees of the scheme is an independent person; and

(b) if at any time he is not so satisfied, to appoint under this paragraph, or to secure the appointment of, an independent person as a trustee of the scheme.

(3) For the purposes of subsection (2) a person is “independent” only if—

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

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

(i) the employer;

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

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

(c) he satisfies such other requirements as may be prescribed;

and any reference in this section or sections 116 to 118 to an “independent trustee” shall be construed accordingly.

(4) Articles 4 and 7 of the M1 Insolvency (Northern Ireland) Order 1989 (connected and associated persons) shall apply for the purposes of subsection (3)(b) as they apply for the purposes of that Order.

(5) Where, apart from this subsection, the duties imposed by subsection (2) in relation to a scheme would fall to be discharged at the same time by two or more persons acting in different capacities, those duties shall be discharged—

(a) if the employer is a company, by the person or persons acting as the company’s liquidator, provisional liquidator or administrator; or

(b) if the employer is an individual, by the person or persons acting as his trustee in bankruptcy or interim receiver of his property.

(6) Where this section applies in relation to a scheme, it shall cease to do so—

(a) if some person other than the employer mentioned in subsection (1) becomes the employer of persons in the description or category of employment to which the scheme relates; or

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

(7) Nothing in subsection (6) affects the application of this section in relation to the scheme on any subsequent occasion when the conditions specified in subsection (1)(a) or (b) are satisfied in relation to it.

(8) In this section—

• “acting as an insolvency practitioner” and “official receiver” shall be construed in accordance with Articles 2(2) and 3 of the M2 Insolvency (Northern Ireland) Order 1989;

• “bankrupt” has the meaning given by Article 9(1) of the Insolvency (Northern Ireland) Order 1989;

• “company” means a company within the meaning given by Article 3(1) of the M3 Companies (Northern Ireland) Order 1986 or a company which may be wound up under Part VI of the Insolvency (Northern Ireland) Order 1989 (unregistered companies).

(9) References in this section to an individual include references to a partnership.

Marginal Citations

M1 S.I. 1989/2405 (N.I. 19).

M2 S.I. 1989/2405 (N.I. 19).

M3 S.I. 1986/1032 (N.I. 6).