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Part IU.K. Occupational pensions

Modifications etc. (not altering text)

C3Pt. I: Pensions Act 2004 (c.35), Pt. 3 construed as one with Pt. I of this Act (4.12.2005 for specified purposes, 30.12.2005 in so far as not already in force) by Pensions Act 2004 (c. 35), ss. 233, 322(1) (with s. 313); S.I. 2005/3331, art. 2(1)(a)(b), Sch. Pt. 1

Assignment, forfeiture, bankruptcy etc.E+W+S

91 Inalienability of occupational pension.E+W+S

(1)Subject to subsection (5), where a person is entitled [F1to a pension under an occupational pension scheme or has a right to a future pension under such a scheme]—

(a)the entitlement or right cannot be assigned, commuted or surrendered,

(b)the entitlement or right cannot be charged or a lien exercised in respect of it, and

(c)no set-off can be exercised in respect of it,

and an agreement to effect any of those things is unenforceable.

(2)Where by virtue of this section a person’s entitlement [F2to a pension under an occupational pension scheme, or right to a future pension under such a scheme,] cannot, apart from subsection (5), be assigned, no order can be made by any court the effect of which would be that he would be restrained from receiving that pension.

F3(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Subsection (2) does not prevent the making of—

(a)an attachment of earnings order under the M1Attachment of Earnings Act 1971, or

(b)an income payments order under the M2Insolvency Act 1986.

(5)In the case of a person (“the person in question”) who is entitled [F4to a pension under an occupational pension scheme, or has a right to a future pension under such a scheme], subsection (1) does not apply to any of the following, or any agreement to effect any of the following—

(a)an assignment in favour of the person in question’s widow, widower[F5, surviving civil partner] or dependant,

(b)a surrender, at the option of the person in question, for the purpose of—

(i)providing benefits for that person’s widow, widower[F5, surviving civil partner] or dependant, or

(ii)acquiring for the person in question entitlement to further benefits under the scheme,

(c)a commutation—

(i)of the person in question’s benefit on or after retirement or in exceptional circumstances of serious ill health,

(ii)in prescribed circumstances, of any benefit for that person’s widow, widower[F5, surviving civil partner] or dependant, or

(iii)in other prescribed circumstances,

(d)subject to subsection (6), a charge or lien on, or set-off against, the person in question’s entitlement, or [F6right,] (except to the extent that it includes transfer credits other than prescribed transfer credits) for the purpose of enabling the employer to obtain the discharge by him of some monetary obligation due to the employer and arising out of a criminal, negligent or fraudulent act or omission by him,

(e)subject to subsection (6), except in prescribed circumstances a charge or lien on, or set-off against, the person in question’s entitlement, or [F7right], for the purpose of discharging some monetary obligation due from the person in question to the scheme and—

(i)arising out of a criminal, negligent or fraudulent act or omission by him, or

(ii)in the case of a trust scheme of which the person in question is a trustee, arising out of a breach of trust by him,

[F8(f)subject to subsection (6), a charge or lien on, or set-off against, the person in question’s entitlement, or right, for the purpose of discharging some monetary obligation due from the person in question to the scheme arising out of a payment made in error in respect of the pension.]

(6)Where a charge, lien or set-off is exercisable by virtue of subsection (5)(d) [F9, (e) or (f)] —

(a)its amount must not exceed the amount of the monetary obligation in question, or (if less) the value (determined in the prescribed manner) of the person in question’s entitlement or accrued right, and

(b)the person in question must be given a certificate showing the amount of the charge, lien or set-off and its effect on his benefits under the scheme,

and where there is a dispute as to its amount, the charge, lien or set-off must not be exercised unless the obligation in question has become enforceable under an order of a competent court or in consequence of an award of an arbitrator or, in Scotland, an arbiter to be appointed (failing agreement between the parties) by the sheriff.

(7)This section is subject to section 159 of the M3Pension Schemes Act 1993 (inalienability of guaranteed minimum pension F10... ).

Textual Amendments

F9Words in s. 91(6) substituted (6.4.2005) by Pensions Act 2004 (c. 35), ss. 266(3), 322(1) (with s. 313); S.I. 2005/275, art. 2(7), Sch. Pt. 7

Modifications etc. (not altering text)

C6S. 91 excluded by Bankruptcy (Scotland) Act 1985 (c.66), s. 36C(2) (as substituted (11.11.1999 for specified purposes, 6.4.2002 in so far as not already in force) by Welfare Reform and Pensions Act 1999 (c. 30), ss. 16, 89(5)(a); S.I. 2002/153, art. 2(f))

C7S. 91 excluded (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. 44(1)(b), 89(5)(a); S.I. 2000/1047, art. 2(2)(d), Sch. Pt. IV

C8S. 91 excluded by Insolvency Act 1986 (c. 45), s. 342C(2) (as substituted (E.W.) (11.11.1999 for specified purposes, 6.4.2002 in so far as not already in force) by Welfare Reform and Pensions Act 1999 (c. 30), ss. 15, 89(5)(a); S.I. 2002/153, art. 2(e))

C9S. 91 modified in part (11.11.1999 for specified purposes, 1.10.2000 in so far as not already in force) by Welfare Reform and Pensions Act 1999 (c. 30), s. 89(5)(a), Sch. 1 para. 1(1)(2)(b)(x); S.I. 2000/1047, art. 2(2)(c), Sch. Pt. III

C10S. 91 excluded by Bankruptcy (Scotland) Act 1985 (c.66), s. 36F(2)(a) (as inserted (S.) (26.3.2002 for specified purposes, 6.4.2002 in so far as not already in force) by Welfare Reform and Pensions Act 1999 (c. 30), s. 89(1), Sch. 12 para. 69; S.I. 2002/818, art. 3(b))

C11S. 91 excluded by Insolvency Act 1986 (c. 45), s. 342F(5)(a) (as inserted (E.W.) (26.3.2002 for specified purposes, 6.4.2002 in so far as not already in force) by Welfare Reform and Pensions Act 1999 (c. 30), s. 89(1), Sch. 12 para. 71; S.I. 2002/818, art. 3(b))

C12S. 91 excluded (24.2.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 273(5)(a), 458(2) (with s. 277(8)); S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

Commencement Information

I1S. 91 in force at 6.4.1996 for specified purposes by S.I. 1996/778, art. 2(5)(a), Sch. Pt. V

I2S. 91(1)(2) in force at 6.4.1997 in so far as not already in force by S.I. 1997/664, art. 2(3), Sch. Pt. 3

I3S. 91(4)-(7) in force at 6.4.1997 in so far as not already in force by S.I. 1997/664, art. 2(3), Sch. Pt. 3

Marginal Citations

92 Forfeiture, etc.E+W+S

(1)Subject to the provisions of this section and section 93, an entitlement [F11to a pension under an occupational pension scheme or a right to a future pension under such a scheme] cannot be forfeited.

(2)Subsection (1) does not prevent forfeiture by reference to—

(a)a transaction or purported transaction which under section 91 is of no effect, F12...

F12(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

whether or not that event occurred before or after the pension became payable.

(3)Where such forfeiture as is mentioned in subsection (2) occurs, any pension which was, or would but for the forfeiture have become, payable may, if the trustees or managers of the scheme so determine, be paid to all or any of the following—

(a)the member of the scheme to or in respect of whom the pension was, or would have become, payable,

[F13(b)the spouse, civil partner, widow, widower or surviving civil partner of the member,]

(c)any dependant of the member, and

(d)any other person falling within a prescribed class.

(4)Subsection (1) does not prevent forfeiture by reference to the [F14pensioner, or prospective pensioner], having been convicted of one or more offences—

(a)which are committed before the pension becomes payable, and

(b)which are—

(i)offences of treason,

(ii)offences under the Official Secrets Acts 1911 to 1989 for which the person 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, or

(iii)prescribed offences.

(5)Subsection (1) does not prevent forfeiture by reference to a failure by any person to make a claim for pension—

(a)where the forfeiture is in reliance on any enactment relating to the limitation of actions, or

(b)where the claim is not made within six years of the date on which the pension becomes due.

(6)Subsection (1) does not prevent forfeiture in prescribed circumstances.

(7)In this section and section 93, references to forfeiture include any manner of deprivation or suspension.

Textual Amendments

F12S. 92(2)(b) and preceding word repealed (11.11.1999 for specified purposes, 6.4.2002 in so far as not already in force) by Welfare Reform and Pensions Act 1999 (c. 30), ss. 14(3), 89(5)(a), Sch. 13 Pt. I; S.I. 2002/153, art. 2(d)(l)(iii)

Modifications etc. (not altering text)

C16S. 92 modified (11.11.1999 for specified purposes, 1.10.2000 in so far as not already in force) by Welfare Reform and Pensions Act 1999 (c. 30), s. 89(5)(a), Sch. 1 para. 1(1)(2)(b)(x); S.I. 2000/1047, art. 2(2)(c), Sch. Pt. III

Commencement Information

I4S. 92 in force at 6.4.1996 for specified purposes by S.I. 1996/778, art. 2(5)(a), Sch. Pt. V

I5S. 92 in force at 6.4.1997 in so far as not already in force by S.I. 1997/664, art. 2(3), Sch. Pt. 3

93 Forfeiture by reference to obligation to employer.E+W+S

(1)Subject to subsection (2), section 92(1) does not prevent forfeiture of a person’s entitlement [F15to a pension under an occupational pension scheme or right to a future pension under such a scheme] by reference to the person having incurred some monetary obligation due to the employer and arising out of a criminal, negligent or fraudulent act or omission by the person.

(2)A person’s entitlement or [F16right] may be forfeited by reason of subsection (1) to the extent only that it does not exceed the amount of the monetary obligation in question, or (if less) the value (determined in the prescribed manner) of the person’s entitlement or [F17right].

(3)Such forfeiture as is mentioned in subsection (1) must not take effect where there is a dispute as to the amount of the monetary obligation in question, unless the obligation has become enforceable under an order of a competent court or in consequence of an award of an arbitrator or, in Scotland, an arbiter to be appointed (failing agreement between the parties) by the sheriff.

(4)Where a person’s entitlement or [F18right] is forfeited by reason of subsection (1), the person must be given a certificate showing the amount forfeited and the effect of the forfeiture on his benefits under the scheme.

(5)Where such forfeiture as is mentioned in subsection (1) occurs, an amount not exceeding the amount forfeited may, if the trustees or managers of the scheme so determine, be paid to the employer.

Textual Amendments

F15Words in s. 93(1) substituted (1.12.2000) by Welfare Reform and Pensions Act 1999 (c. 30), s. 89(1), Sch. 12 para. 59(2); S.I. 2000/1047, art. 2(2)(d) Sch. Pt. 4

F16Word in s. 93(2) substituted (1.12.2000) by Welfare Reform and Pensions Act 1999 (c. 30), s. 89(1), Sch. 12 para. 59(3)(a); S.I. 2000/1047, art. 2(2)(d) Sch. Pt. 4

F17Word in s. 93(2) substituted (1.12.2000) by Welfare Reform and Pensions Act 1999 (c. 30), s. 89(1), Sch. 12 para. 59(3)(b); S.I. 2000/1047, art. 2(2)(d) Sch. Pt. 4

F18Word in s. 93(4) substituted (1.12.2000) by Welfare Reform and Pensions Act 1999 (c. 30), s. 89(1), Sch. 12 para. 59(4); S.I. 2000/1047, art. 2(2)(d) Sch. Pt. 4

Modifications etc. (not altering text)

Commencement Information

I6S. 93 in force at 6.4.1996 for specified purposes by S.I. 1996/778, art. 2(5)(a), Sch. Pt. V

I7S. 93 in force at 6.4.1997 in so far as not already in force by S.I. 1997/664, art. 2(3), Sch. Pt. 3

94 Sections 91 to 93: supplementary.E+W+S

(1)Regulations may—

(a)modify sections 91 to 93 in their application to public service pension schemes or to other schemes falling within a prescribed class or description, or

(b)provide that those sections do not apply in relation to schemes falling within a prescribed class or description.

(2)In those sections, “pension” in relation to an occupational pension scheme, includes any benefit under the scheme and any part of a pension and any payment by way of pension.

(3)In the application of sections 91 and 92 to Scotland—

(a)references to a charge are to be read as references to a right in security or a diligence and “charged” is to be interpreted accordingly,

(b)references to assignment are to be read as references to assignation and “assign” is to be interpreted accordingly,

F19(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)the reference to an income payments order under the M4Insolvency Act 1986 is to be read as a reference to an order under section 32(2) of the M5Bankruptcy (Scotland) Act 1985, F20...

F20(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F21(f)after subsection 91(4) there is inserted—

“Subject to section 73(3)(d) of the Debtors (Scotland) Act 1987, nothing in this section prevents any diligence mentioned in section 46 of that Act being done against a pension under an occupational pension scheme.”]

Textual Amendments

F21S. 94(3)(f) inserted (11.11.1999 for specified purposes, 25.4.2000 in so far as not already in force) by Welfare Reform and Pensions Act 1999 (c. 30), s. 89(5)(a), Sch. 2 para. 17; S.I. 2000/1047, art. 2(2)(b), Sch. Pt. II

Modifications etc. (not altering text)

C18S. 94 modified (11.11.1999 for specified purposes, 1.10.2000 in so far as not already in force) by Welfare Reform and Pensions Act 1999 (c. 30), s. 89(5)(a), Sch. 1 para. 1(1)(2)(b)(x); S.I. 2000/1047, art. 2(2)(c), Sch. Pt. III

Commencement Information

I8S. 94 in force at 6.4.1996 for specified purposes by S.I. 1996/778, art. 2(5)(a), Sch. Pt. V

I9S. 94 in force at 6.4.1997 in so far as not already in force by S.I. 1997/664, art. 2(3), Sch. Pt. 3

Marginal Citations

F2295 Pension rights of individuals adjudged bankrupt etc.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments