C11C9C12C13Part 2The Board of the Pension Protection Fund

Annotations:
Modifications etc. (not altering text)
C13

Pt. 2 applied in part (24.7.2014) by The Pensions Act 2011 (Transitional, Consequential and Supplementary Provisions) Regulations 2014 (S.I. 2014/1711), regs. 1(1), 42(1), 53, 57 (with regs. 6, 41, 44(1), 47(1), 69(2), 72(1), 76(1)); coming into force immediately after s. 29 of 2011 c. 19 - see S.I. 2014/1683, art. 2

C3C2Chapter 2Information relating to employer’s insolvency etc

Annotations:
Modifications etc. (not altering text)
C3

Pt. 2 modified in part (9.3.2005 for specified purposes, 1.4.2005 for specified purposes, 6.4.2005 in so far as not already in force (except ch. 4)) by The Pension Protection Fund (Multi-employer Schemes) (Modification) Regulations 2005 (S.I. 2005/441), regs. 1, 2-60, 71, 72

C2

Pt. 2 modified (8.3.2005 for specified purposes, 6.4.2005 in so far as not already in force) by The Pension Protection Fund (Partially Guaranteed Schemes) (Modification) Regulations 2005 (S.I. 2005/277), regs. 1(1), 2-11

Insolvency events

C2C3C4120C4C3C2Duty to notify insolvency events in respect of employers

I71

This section applies where, in the case of an occupational pension scheme, an insolvency event occurs in relation to the employer.

I72

The insolvency practitioner in relation to the employer must give a notice to that effect within the notification period to—

a

the Board,

b

the Regulator, and

c

the trustees or managers of the scheme.

I13

For the purposes of subsection (2) the “notification period” is the prescribed period beginning with the later of—

a

the insolvency date, and

b

the date the insolvency practitioner becomes aware of the existence of the scheme.

I14

A notice under this section must be in such form and contain such information as may be prescribed.

C3C1121C3C2Insolvency event, insolvency date and insolvency practitioner

I111

In this Part each of the following expressions has the meaning given to it by this section—

  • “insolvency event”

  • “insolvency date”

  • “insolvency practitioner”.

I112

An insolvency event occurs in relation to an individual where—

a

he is F4made bankrupt or sequestration of his estate has been awarded;

b

the nominee in relation to a proposal for a voluntary arrangement under Part 8 of the Insolvency Act 1986 (c. 45) submits a report to the court under section 256(1) or 256A(3) of that Act which states that in his opinion F7the individual’s creditors should consider the debtor’s proposal;

F3c

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

d

he executes a trust deed for his creditors or enters into a composition contract;

e

he has died and—

i

an insolvency administration order is made in respect of his estate in accordance with an order under section 421 of the Insolvency Act 1986, or

ii

a judicial factor appointed under section 11A of the Judicial Factors (Scotland) Act 1889 (c. 39) is required by that section to divide the individual’s estate among his creditors.

I113

An insolvency event occurs in relation to a company where—

a

the nominee in relation to a proposal for a voluntary arrangement under Part 1 of the Insolvency Act 1986 submits a report to the court under section 2 of that Act (procedure where nominee is not the liquidator or administrator) which states that in his opinion F8the proposal should be considered by a meeting of the company and by the company’s creditors;

b

the directors of the company file (or in Scotland lodge) with the court documents and statements in accordance with paragraph 7(1) of Schedule A1 to that Act (moratorium where directors propose voluntary arrangement);

c

an administrative receiver within the meaning of section 251 of that Act is appointed in relation to the company;

C10C14d

the company enters administration within the meaning of paragraph 1(2)(b) of Schedule B1 to that Act;

e

a resolution is passed for a voluntary winding up of the company without a declaration of solvency under section 89 of that Act;

F9f

a winding up becomes a creditors’ voluntary winding up under section 96 of that Act (conversion to creditors’ voluntary winding up);

g

an order for the winding up of the company is made by the court under Part 4 or 5 of that Act.

I114

An insolvency event occurs in relation to a partnership where—

a

an order for the winding up of the partnership is made by the court under any provision of the Insolvency Act 1986 (c. 45) (as applied by an order under section 420 of that Act (insolvent partnerships));

b

sequestration is awarded on the estate of the partnership under section F522 of the Bankruptcy (Scotland) Act 2016 or the partnership grants a trust deed for its creditors;

c

the nominee in relation to a proposal for a voluntary arrangement under Part 1 of the Insolvency Act 1986 (as applied by an order under section 420 of that Act) submits a report to the court under section 2 of that Act (procedure where nominee is not the liquidator or administrator) which states that in his opinion F10the proposal should be considered by a meeting of the members of the partnership and by the partnership’s creditors;

d

the members of the partnership file with the court documents and statements in accordance with paragraph 7(1) of Schedule A1 to that Act (moratorium where directors propose voluntary arrangement) (as applied by an order under section 420 of that Act);

F1e

the partnership enters administration within the meaning of paragraph 1(2)(b) of Schedule B1 to that Act (as applied by an order under section 420 of that Act).

I25

An insolvency event also occurs in relation to a person where an event occurs which is a prescribed event in relation to such a person.

I116

Except as provided by subsections (2) to (5), for the purposes of this Part an event is not to be regarded as an insolvency event in relation to a person.

I147

The Secretary of State may by order amend subsection (4)(e) to make provision consequential upon any order under section 420 of the Insolvency Act 1986 (insolvent partnerships) applying the provisions of Part 2 of that Act (administration) as amended by the Enterprise Act 2002 (c. 40).

I118

“Insolvency date”, in relation to an insolvency event, means the date on which the event occurs.

9

“Insolvency practitioner”, in relation to a person, means—

I11a

a person acting as an insolvency practitioner, in relation to that person, in accordance with section 388 of the Insolvency Act 1986;

I15b

in such circumstances as may be prescribed, a person of a prescribed description.

I1110

In this section—

  • “company” means a company F2as defined in section 1(1) of the Companies Act 2006 or a company which may be wound up under Part 5 of the Insolvency Act 1986 (c. 45) (unregistered companies);

  • “person acting as an insolvency practitioner”, in relation to a person, includes the official receiver acting as receiver or manager of any property of that person.

I1111

In applying section 388 of the Insolvency Act 1986 under subsection (9) above—

F6a

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

b

section 388(5) (which includes provision that nothing in the section applies to anything done by the official receiver or the Accountant in Bankruptcy) must be ignored.

Status of scheme

I5I13C2C3C5122C2C3Insolvency practitioner’s duty to issue notices confirming status of scheme

I81

This section applies where an insolvency event has occurred in relation to the employer in relation to an occupational pension scheme.

I82

An insolvency practitioner in relation to the employer must—

a

if he is able to confirm that a scheme rescue is not possible, issue a notice to that effect (a “scheme failure notice”), or

b

if he is able to confirm that a scheme rescue has occurred, issue a notice to that effect (a “withdrawal notice”).

I33

Subsection (4) applies where—

a

in prescribed circumstances, insolvency proceedings in relation to the employer are stayed or come to an end, or

b

a prescribed event occurs.

I84

If a person who was acting as an insolvency practitioner in relation to the employer immediately before this subsection applies has not been able to confirm in relation to the scheme—

a

that a scheme rescue is not possible, or

b

that a scheme rescue has occurred,

he must issue a notice to that effect.

I35

For the purposes of this section—

a

a person is able to confirm that a scheme rescue has occurred in relation to an occupational pension scheme if, and only if, he is able to confirm such matters as are prescribed for the purposes of this paragraph, and

b

a person is able to confirm that a scheme rescue is not possible, in relation to such a scheme if, and only if, he is able to confirm such matters as are prescribed for the purposes of this paragraph.

I86

Where an insolvency practitioner or former insolvency practitioner in relation to the employer issues a notice under this section, he must give a copy of that notice to—

a

the Board,

b

the Regulator, and

c

the trustees or managers of the scheme.

I87

A person must comply with an obligation imposed on him by subsection (2), (4) or (6) as soon as reasonably practicable.

I38

Regulations may require notices issued under this section—

a

to be in a prescribed form;

b

to contain prescribed information.

C2C3C6123C2C3Approval of notices issued under section 122

I91

This section applies where the Board receives a notice under section 122(6) (“the section 122 notice”).

I92

The Board must determine whether to approve the section 122 notice.

I93

The Board must approve the section 122 notice if, and only if, it is satisfied—

a

that the insolvency practitioner or former insolvency practitioner who issued the notice was required to issue it under that section, and

b

that the notice complies with any requirements imposed by virtue of subsection (8) of that section.

I94

Where the Board makes a determination for the purposes of subsection (2), it must issue a determination notice and give a copy of that notice to—

a

the Regulator,

b

the trustees or managers of the scheme,

c

the insolvency practitioner or the former insolvency practitioner who issued the section 122 notice,

d

any insolvency practitioner in relation to the employer (who does not fall within paragraph (c)), and

e

if there is no insolvency practitioner in relation to the employer, the employer.

I45

In subsection (4) “determination notice” means a notice which is in the prescribed form and contains such information about the determination as may be prescribed.

Board’s duties

I12C2C3C7124C2C3Board’s duty where there is a failure to comply with section 122

1

This section applies where in relation to an occupational pension scheme—

a

the Board determines under section 123 not to approve a notice issued under section 122 by an insolvency practitioner or former insolvency practitioner in relation to the employer, or

b

an insolvency practitioner or former insolvency practitioner in relation to the employer fails to issue a notice under section 122 and the Board is satisfied that such a notice ought to have been issued under that section.

2

The obligations on the insolvency practitioner or former insolvency practitioner imposed by subsections (2) and (4) of section 122 are to be treated as obligations imposed on the Board and the Board must accordingly issue a notice as required under that section.

3

Subject to subsections (4) and (5), where a notice is issued under section 122 by the Board by virtue of this section, it has effect as if it were a notice issued under section 122 by an insolvency practitioner or, as the case may be, former insolvency practitioner in relation to the employer.

4

Where a notice is issued under section 122 by virtue of this section, section 122(6) does not apply and the Board must, as soon as reasonably practicable, give a copy of the notice to—

a

the Regulator,

b

the trustees or managers of the scheme,

c

the insolvency practitioner or former insolvency practitioner mentioned in subsection (1),

d

any insolvency practitioner in relation to the employer (who does not fall within paragraph (c)), and

e

if there is no insolvency practitioner in relation to the employer, the employer.

5

Where the Board—

a

is required to issue a notice under section 122 by virtue of this section, and

b

is satisfied that the notice ought to have been issued at an earlier time,

it must specify that time in the notice and the notice is to have effect as if it had been issued at that time.

C2C3C8125C2C3Binding notices confirming status of scheme

I101

Subject to subsection (2), for the purposes of this Part, a notice issued under section 122 is not binding until—

a

the Board issues a determination notice under section 123 approving the notice,

b

the period within which the issue of the determination notice under that section may be reviewed by virtue of Chapter 6 has expired, and

c

if the issue of the determination notice is so reviewed—

i

the review and any reconsideration,

ii

any reference to the PPF Ombudsman in respect of the issue of the notice, and

iii

any appeal against his determination or directions,

has been finally disposed of and the determination notice has not been revoked, varied or substituted.

I102

Where a notice is issued under section 122 by the Board by virtue of section 124, the notice is not binding until—

a

the period within which the issue of the notice may be reviewed by virtue of Chapter 6 has expired, and

b

if the issue of the notice is so reviewed—

i

the review and any reconsideration,

ii

any reference to the PPF Ombudsman in respect of the issue of the notice, and

iii

any appeal against his determination or directions,

has been finally disposed of and the notice has not been revoked, varied or substituted.

I103

Where a notice issued under section 122 becomes binding, the Board must as soon as reasonably practicable give a notice to that effect together with a copy of the binding notice to—

a

the Regulator,

b

the trustees or managers of the scheme,

c

the insolvency practitioner or former insolvency practitioner who issued the notice under section 122 or, where that notice was issued by the Board by virtue of section 124, the insolvency practitioner or former insolvency practitioner mentioned in subsection (1) of that section,

d

any insolvency practitioner in relation to the employer (who does not fall within paragraph (c)), and

e

if there is no insolvency practitioner in relation to the employer, the employer.

4

A notice under subsection (3)—

I6a

must be in the prescribed form and contain such information as may be prescribed, and

I10b

where it is given in relation to a withdrawal notice issued under section 122(2)(b) which has become binding, must state the time from which the Board ceases to be involved with the scheme (see section 149).