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PART VIIIE+W+S TRANSITIONAL ARRANGEMENTS AND SAVINGS

Transitional arrangements for certification of schemes.E+W+S

70.—(1) In the case of a scheme contracted-out under section 9(2) of the 1993 Act, a contracting-out certificate issued before the principal appointed day shall continue to have effect during the period beginning with that day and ending on either—

(a)whichever is the earlier of—

(i)the day before the effective date of a replacement contracting-out certificate issued by the Secretary of State, or

(ii)31st January 1998, or

(b)such later date as the Secretary of State may in his discretion permit in any particular case,

provided that it is not otherwise cancelled or surrendered and the scheme satisfies all contracting-out conditions or requirements which apply to the scheme from the principal appointed day by virtue of it being a scheme to which section 9(2) of that Act applies.

(2) In the case of a scheme contracted-out under section 9(3) of the 1993 Act, a contracting-out certificate issued before the principal appointed day shall continue to have effect on and after that date provided that it is not cancelled or surrendered and the scheme satisfies all contracting-out conditions or requirements which apply to the scheme from the principal appointed day by virtue of it being a scheme to which section 9(3) of that Act applies.

(3) A contracting-out certificate having effect on or after the principal appointed day by virtue of this regulation, shall have effect in relation to any earner’s service on and after that day as if the certificate was issued by the Secretary of State on or after that day.

Elections for replacement certificates by salary-related schemes during transitional period.E+W+S

71.  During the period beginning with the principal appointed day and ending on 31st January 1998 or such later date as the Secretary of State may allow in relation to a particular case or class of case, an election made with a view to the issue of a contracting-out certificate in relation to an employment which is to remain contracted-out under section 9(2) of the 1993 Act on or after the principal appointed day must be made in compliance with regulation 2 and regulation 10 shall not apply.

Transitional requirements as to sufficiency of resources of salary-related schemes.E+W+S

72.—(1)  Except in cases to which regulation 73 applies (schemes which have begun winding up before the principal appointed day) for the purposes of section 9(2B)(c)(i) of the 1993 Act (requirement as to the amount of the resources of the scheme) and section 25(2) of that Act (scheme to comply with prescribed requirements in relation to securing that the resources of the scheme are brought to and maintained at satisfactory level in respect of any earner’s service before the principal appointed day) at any time during the period F1 ... beginning with the principal appointed day [F2 and ending with the date of first certification], the amount of resources of the scheme must be sufficient to meet the liabilities specified in paragraph (2).

[F3(1A) In paragraph (1) above, the date of first certification means the first occasion on which the actuary to the scheme certifies the rates of contributions shown in a schedule of contributions for the scheme for the purposes of [F4section 227 of the 2004 Act] (schedules of contributions).]

[F5(2) The liabilities referred to in paragraph (1) are the liabilities mentioned in [F6section 73(4) of the 1995 Act (liabilities towards which scheme assets must be applied first on winding up).]]

(3) F7 ... The liabilities specified in paragraph (2) and the resources required to meet such liabilities shall be calculated, determined and verified in accordance with regulations made under [F8section 222(3) of the 2004 Act (statutory funding objective) ] .

F9(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F9(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) This regulation does not apply to a public service pension scheme to which [F10Part 3 of the 2004 Act] does not apply[F11, or to any scheme in respect of which any Minister of the Crown has given a guarantee, or made any other arrangements, for the purposes of securing that the assets of the scheme are sufficient to meet its liabilities.]

Textual Amendments

Transitional arrangements and savings for salary-related schemes which have begun winding up before the principal appointed day.E+W+S

73.   In the case of a scheme to which section 23(2) and (3) of the 1993 Act M1 applies (schemes where winding up began before the principal appointed day)—

(a) regulation 40 (priorities on the winding-up of a scheme) of the Occupational Pension Schemes (Contracting-out) Regulations 1984 M2 shall continue to have effect, and

(b) the resources of the scheme must be sufficient to meet the liabilities specified in section 24(1)(c) of the 1993 Act, F12 ... such resources and liabilities being calculated, determined and verified in a manner approved by the Secretary of State.

Textual Amendments

Marginal Citations

M1Section 23 was amended by paragraph 31 of Schedule 5 to the Pensions Act 1995.

M2 S.I. 1984/380 : the relevant amending instrument is S.I. 1994/1062 .

Transitional arrangements in relation to the powers of the Secretary of State to approve arrangements for schemes ceasing to contract out before the principal appointed day.E+W+S

74.   In the case of a scheme which ceased to be certified as contracted-out before the principal appointed day, the Secretary of State may approve arrangements under section 50(1) or (1A) of the 1993 Act M3 , notwithstanding that the conditions prescribed under section 50(1B) of that Act are not met.

Marginal Citations

M3Secton 50(1A) was inserted by paragraph 45 of Schedule 5 to the Pensions Act 1995.

Transitional modifications to sections 35 and 36 of the 1993 Act.E+W+S

75.  Sections 35 and 36 of the 1993 Act (surrender and cancellation of contracting-out certificates: issue and cancellation of further certificates) shall be modified for transitional purposes until the coming into force of an order under section 180 of the 1995 Act repealing those provisions as follows—

(a) in paragraph (a) of subsection (1) of section 35 of the 1993 Act “ or the Secretary of State ” is added after “the Board";

(b) in each other place where the word appears, for “Board" there is substituted “ Secretary of State ” ;

(c) in subsection (3) of section 35 of the 1993 Act, for “they consider" there is substituted “ he considers ” ;

(d) in paragraph (c) of subsection (1) of section 36 of the 1993 Act, for “have formed" there is substituted “ has formed ” , for “had they been aware" there is substituted “ had he been aware ” and for “they would have been prevented" there is substituted “ he would have been prevented ” ; and

(e) in subsection (6) of section 36, for “have cancelled" there is substituted “ has cancelled ” .

Prevention of recovery by employers of Class 1 contributions where certificate cancelled under section 36(3) of the 1993 Act.E+W+S

76.—(1) This regulation shall apply in any case where the Occupational Pensions Board or the Secretary of State has cancelled a contracting-out certificate under section 36(3) of the 1993 Act.

(2) An employer shall not be entitled to recover (whether by deduction from emoluments or otherwise) any 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 Contributions and Benefits Act in so far as those arrears comprise the difference between the amount of the primary Class 1 contributions payable at the normal rate in respect of the emoluments from the employed earner’s employment and the amount of the primary Class 1 contributions that were paid while the employment was regarded as contracted-out to the cancellation of the further contracting-out certificate.

(3) This regulation shall apply notwithstanding the terms of any contract to the contrary.

[F13Transitional arrangements for schemes contracted-out under section 9(2) of the 1993 Act to become contracted-out under section 9(3) of that ActE+W+S

76A.—(1) This regulation applies where a scheme, which is a salary-related contracted-out scheme immediately before the principal appointed day, satisfies the requirements of section 9(3) of the 1993 Act in respect of all earners' service on or immediately after that day.

(2) The circumstances referred to in paragraph (1) shall, for the purposes of section 12(3) of that Act (determination of basis on which a scheme is contracted-out) be circumstances in which a scheme which has been contracted-out by virtue of section 9(2) of that Act may become contracted-out by virtue of section 9(3) of that Act.

[F14(3) Where this regulation applies, sections 50, 52 and 53 of that Act (approval of arrangements for, and supervision of, schemes which cease to be contracted-out) as they apply in relation to the guaranteed minimum pensions provided under the scheme shall be modified so as to have effect as if those pensions were provided under a separate scheme which had ceased to be certified as a contracted-out scheme immediately before the principal appointed day.]

[F15(4)  Where a contracting-out certificate for a scheme to which this regulation applies (“the second certificate") is issued after the principal appointed day but not later than 31st January 1998 (or such later date as the Secretary of State may in his discretion permit in any particular case), then the contracting-out certificate in force immediately before the principal appointed day (“the first certificate") shall be deemed to continue in effect during the period beginning with the principal appointed day and ending with the time when the second certificate is issued F16 ....

(5) Paragraph (4) does not apply if the first certificate was cancelled or surrendered before the end of that period.

(6) Paragraph (4) is without prejudice to the powers in regulations 8(2)(d) and 47(2) (retrospective effect of issue and cancellation of certificates).]

[F17(7) Section 55(2) of the 1993 Act shall be modified so as to have effect in relation to a scheme to which this regulation applies as though it were a salary related scheme, save that an election to pay a contributions equivalent premium shall apply only in respect of the earner’s service before the principal appointed day.]]

Textual Amendments

[F18Former requirements for consent for alterations of rulesE+W+S

76B.  Where any provision of a scheme provides that any alteration of the rules of the scheme, to which section 37(1) of the 1993 Act applied immediately before the principal appointed day, requires, or is void if made without, the consent of the Occupational Pensions Board, to the extent that it so provides it shall cease to have effect.]

Textual Amendments

Savings in respect of State Scheme Premiums.E+W+S

77.  The following regulations shall continue to have effect in relation to any state scheme premium which has been paid before the principal appointed day or is payable immediately before that day—

(a) regulations 18 to 26, 34, 44, 45, 47, 48 and 49 of the Occupational Pension Schemes (Contracting-out) Regulations 1984 M4 ;

(b) the Occupational Pension Schemes (Contracted-out Protected Rights Premiums) Regulations 1987 M5 .

Marginal Citations

M4 S.I. 1984/380 : the relevant amending instruments are S.I. 1985/1323 , S.I . 1985/1928, S.I. 1986/317 , S.I . 1986/1716, S.I. 1987/1103 , S.I . 1987/1106, S.I. 1987/1114 , S.I . 1988/475, S.I. 1989/500 , S.I . 1990/1142, S.I. 1992/1531 , S.I . 1993/519, S.I. 1994/1062 .

M5 S.I. 1987/1103 : the amending instrument is S.I. 1994/1062 .