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The Contracting-out (Transfer and Transfer Payment) Regulations 1996

Changes over time for: The Contracting-out (Transfer and Transfer Payment) Regulations 1996 (without Schedules)

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PART I GENERAL

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Contracting-out (Transfer and Transfer Payment) Regulations 1996 and shall come into force on 6th April 1997.

(2) In these Regulations—

“the 1993 Act" means the Pension Schemes Act 1993;

“accrued rights", for the purposes of Parts II and IV of these Regulations, has the meaning given to that expression in section 20(6) of the 1993 Act;

F1...

[F2 “ Administration Act ” means the Social Security Administration Act 1992; ]

“appropriate policy" means a policy of insurance or an annuity contract such as is described in section 19(4) of the 1993 Act;

“appropriately secured" has the meaning given to that expression in section 19(3) of the 1993 Act;

[F3“connected employer transfer” and “connected employer transfer payment” mean respectively a transfer of guaranteed minimum pensions from a [F4scheme that was a] salary-related contracted-out scheme to a [F4scheme that was a] salary-related contracted-out scheme and a transfer payment in respect of section 9(2B) rights from a [F4scheme that was a] salary-related contracted-out scheme to a [F4scheme that was a] salary-related contracted-out scheme where either—

(a)

the transferring scheme and the receiving scheme relate to persons who are or have been in employment with the same employer; or

(b)

the transferring scheme and receiving scheme relate to persons who are or have been in employment with different employers, and the earner or person concerned is one of a group of persons in respect of whom transfers or transfer payments are being made from the transferring scheme to the receiving scheme and either—

(i)

the transfer or transfer payment is a consequence of a financial transaction between the employers, or

(ii)

each of the employers is one of a group of companies consisting of a holding company and one or more subsidiaries within the meaning of section 1159(1) of the Companies Act 2006 (meaning of “subsidiary” etc ),

F5...]

“earner" includes an earner who is not in employment at the time of the transfer or transfer payment;

F1...

“overseas arrangement" means a scheme or arrangement, other than an occupational pension scheme, 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; [F6and]

F7(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)is administered wholly or primarily outside the United Kingdom;

[F8“overseas scheme” means—

(a)

an occupational pension scheme which has its main administration outside the [F9EEA states ] ; or

(b)

a European pensions institution as defined in section 293(8) of the Pensions Act 2004 (functions of Regulator in relation to institutions administered in other [F10EEA states ] ),

but does not include a [F11scheme that was a] salary-related contracted-out scheme F12....]

“the principal appointed day" has the meaning given to that expression in section [F13181(1)] of the 1993 Act;

F14...

F15...

“scheme" means an occupational pension scheme or a personal pension scheme;

[F16“section 9(2B) rights” has the meaning given in regulation 2(1) of the Occupational Pension Schemes (Schemes that were Contracted-out) (No.2) Regulations 2015]

“trustees", in relation to a scheme which is not set up or established under a trust, means the managers of the scheme.

Textual Amendments

PART II TRANSFERS OF AND TRANSFER PAYMENTS IN RESPECT OF GUARANTEED MINIMUM PENSIONS

General

2.—(1) A transfer or transfer payment from an occupational pension scheme of or in respect of the accrued rights of an earner to guaranteed minimum pensions may be made in accordance with whichever of regulations 3 to 6 is applicable and no such transfer or transfer payment may otherwise be made from such a scheme.

(2) A transfer or transfer payment from an appropriate policy of or in respect of the accrued rights of an earner to guaranteed minimum pensions which are appropriately secured may be made in accordance with whichever of regulations 3, 5 or 6 is applicable and no such transfer or transfer payment may otherwise be made from such a policy.

(3) A transfer of liability for the payment of guaranteed miniumum pensions to or in respect of any person who has become entitled to them may be made from an occupational pension scheme in accordance with whichever of regulations 3 or 4 is applicable and no such transfer may be made otherwise.

(4) In regulations 3 to 6 “transfer" means a transfer, of accrued rights or liability, such as is described in this regulation and “transfer payment" means a payment in respect of accrued rights such as is described in this regulation.

Transfers of guaranteed minimum pensions to [F17schemes that were] salary-related contracted-out schemes

3.  A transfer may be made to a [F18scheme that was a] salary-related contracted-out scheme if—

(a)the earner or person concerned consents in writing;

(b)in the case of a transfer of the accrued rights of an earner—

(i)the earner is employed by an employer who is a contributor to the receiving scheme, or

(ii)the earner has previously been a member of the receiving scheme;

(c)F19... the conditions specified in paragraphs 1 to 4 of Schedule 1 are satisfied, unless the transfer is from an appropriate policy in which case the condition set out in paragraph 5 of Schedule 1 must be satisfied;

(d)in the case of a transfer of the accrued rights of an earner from an appropriate policy, the receiving scheme does not make provision under section 16(2) and (3) of the 1993 Act M1 (revaluation of earnings factors for purposes of section 14: early leavers etc.), or any analogous provision, in relation to the rights transferred where the effect would be to increase them at a different rate from that at which they would have been increased had the transfer not taken place; and

(e)in the case of a transfer of liability for the payment of guaranteed minimum pensions to or in respect of a person who has become entitled to them, the transfer is from a scheme and the conditions set out in paragraph 6 of Schedule 1 are satisfied.

Textual Amendments

Marginal Citations

M1Section 16(3) was amended by paragraph 28 of Schedule 5 to the Pensions Act 1995.

Connected employer transfers of guaranteed minimum pensions

4.  A connected employer transfer may be made F20... subject to the conditions set out in regulation 3(c) and (e).

Textual Amendments

[F21Transfer payments in respect of guaranteed minimum pensions to occupational and personal pension schemes

5.  A transfer payment in respect of a guaranteed minimum pension may be made to a scheme which is not F22... an overseas scheme or overseas arrangement, if—

(a)the earner consents in writing;

(b)the transfer payment (whether or not it forms part of a larger payment in respect of both guaranteed minimum pensions and other rights) is of an amount at least equal to the cash equivalent of the earner’s accrued rights to guaranteed minimum pensions, as calculated and verified in a manner consistent with regulations made under section 97 of the 1993 Act (calculation of cash equivalents); and—

(c)the earner has acknowledged in writing to the transferring scheme that the earner has received a statement from the receiving scheme showing the benefits to be awarded in respect of the transfer payment, and that the earner accepts that—

(i)the benefits to be provided by the receiving scheme may be in a different form and of a different amount to those which would have been payable by the transferring scheme, and

(ii)there is no statutory requirement on the receiving scheme to provide for survivor’s benefits out of the transfer payment.]

Textual Amendments

Transfer payments in respect of guaranteed minimum pensions to overseas schemes

6.  A transfer payment may be made to an overseas scheme [F23or an overseas arrangement] if—

(a)the earner consents in writing;

(b)the trustees of the transferring scheme have taken reasonable steps to satisfy themselves [F24(or, if the transfer payment is from an appropriate policy, the transferring insurance company has taken reasonable steps to satisfy itself)] that[F25, where the receiving scheme is an occupational pension scheme, the earner is in employment to which the receiving scheme applies];

(c)the transfer payment (whether or not it forms part of a larger payment in respect of both guaranteed minimum pensions and other rights) is of an amount at least equal to the cash equivalent of the earner’s accrued rights to guaranteed minimum pensions, as calculated and verified in a manner consistent with regulations made under section 97 of the 1993 Act;

(d)the earner has acknowledged in writing that he accepts that the scheme [F26or arrangement] to which the transfer payment is to be made may not be regulated in any way by the law of the United Kingdom and that as a consequence there may be no obligation under that law on the receiving scheme [F27or arrangement] or its trustees or administrators to provide any particular value or benefit in return for the transfer payment; and

(e)the trustees of the transferring scheme have taken reasonable steps to satisfy themselves [F28(or, if the transfer payment is from an appropriate policy, the transferring insurance company has taken reasonable steps to satisfy itself)] that the earner has received a statement from the receiving scheme [F29or arrangement] showing the benefits to be awarded in respect of the transfer payment and the conditions (if any) on which these could be forfeited or withheld.

Textual Amendments

PART III TRANSFERS OF LIABILITY IN RESPECT OF SECTION 9(2B) RIGHTS

General

7.—(1) A transfer of liability—

(a)from a [F30scheme that was a] salary-related contracted-out scheme F31... F32... in respect of the accrued section 9(2B) rights of an earner; or

(b)from a [F30scheme that was a] salary-related contracted-out scheme F31... for the payment to or in respect of a person who has become entitled to them of pensions under that scheme deriving from section 9(2B) rights

may be made in accordance with arrangements which satisfy paragraph (2) and no such transfer may be made otherwise.

(2) The arrangements referred to in paragraph (1) must result in there being made—

(a)in the case of a transfer referred to in paragraph (1)(a), a transfer payment to the receiving scheme or overseas arrangement, in accordance with whichever of regulations 8 to 11 is applicable, of at least the cash equivalent of the accrued section 9(2B) rights in respect of which the transfer is being made, as calculated and verified in a manner consistent with regulations made under section 97 of the 1993 Act; and

(b)in the case of a transfer referred to in paragraph (1)(b), a connected employer transfer payment F33... in accordance with regulation 9.

(3) In this regulation and regulations 8 to 11 “transfer payment" means a payment to effect a transfer of liability such as is referred to in paragraph (1).

Textual Amendments

Transfer payments to [F34schemes that were] salary-related contracted-out schemes in respect of section 9(2B) rights

8.  A transfer payment in respect of an earner’s accrued section 9(2B) rights may be made to a [F35scheme that was a salary-related contracted-out scheme which was contracted-out by virtue of section 9(2B) of the 1993 Act] if—

(a)the earner consents in writing;

(b)the earner—

(i)is employed by an employer who is a contributor to the receiving scheme, or

(ii)has previously been a member of the receiving scheme; and

(c)the transfer payment is applied to provide rights for the earner or person concerned which, had they accrued in the receiving scheme, would be provided in accordance with the rules of the receiving scheme relating to earners who are in employment [F36which was contracted-out in relation to the receiving scheme on or after the principal appointed day.]

Textual Amendments

Connected employer transfer payments

9.  A connected employer transfer payment may be made F37... subject to—

(a)the condition set out in regulation 8(c); and

(b)the condition set out in regulation 12(3) of the Occupational Pension Schemes (Preservation of Benefit) Regulations 1991 M2 (requirement for actuarial certificate).

Textual Amendments

Marginal Citations

M2S.I. 1991/167. The relevant amending instrument is S.I. 1993/1822.

[F38Transfer payments to occupational and person pension schemes in respect of section 9(2B) rights

10.  A transfer payment in respect of an earner’s accrued section 9(2B) rights may be made to a scheme which is not F39... an overseas scheme or overseas arrangement, if—

(a)the earner consents in writing; and

(b)the earner has acknowledged in writing to the transferring scheme that the earner has received a statement from the receiving scheme showing the benefits to be awarded in respect of the transfer payment, and that the earner accepts that—

(i)the benefits to be provided by the receiving scheme may be in a different form and of a different amount to those which would have been payable by the transferring scheme, and

(ii)there is no statutory requirement on the receiving scheme to provide for survivor’s benefits out of the transfer payment.]

Textual Amendments

Transfer payments to overseas schemes or arrangements in respect of section 9(2B) rights

11.  A transfer payment in respect of an earner’s accrued section 9(2B) rights may be made to an overseas scheme or overseas arrangement if—

(a)the earner consents in writing;

(b)the trustees of the transferring scheme have taken reasonable steps to satisfy themselves that F40..., where the receiving scheme is an occupational pension scheme, [F41the earner] has entered employment to which the receiving scheme applies;

(c)the earner has acknowledged in writing that he accepts that the scheme or arrangement to which the transfer payment is to be made may not be regulated in any way by the law of the United Kingdom and that as a consequence there may be no obligation under that law on the receiving scheme or arrangement or its trustees or administrators to provide any particular value or benefit in return for the transfer payment; and

(d)the trustees of the transferring scheme have taken reasonable steps to satisfy themselves that the earner has received a statement from the receiving scheme or arrangement showing the benefits to be awarded in respect of the transfer payment and the conditions (if any) on which these could be forfeited or withheld.

Textual Amendments

PART IV MODIFICATION OF PART III OF THE 1993 ACT

Modifications of Part III of the 1993 Act on transfers of and transfer payments in respect of guaranteed minimum pensions from occupational pension schemes

12.  Where a transfer to a [F42scheme that was a] salary-related contracted-out scheme, or a transfer payment to an overseas scheme, has taken place from an occupational pension scheme in accordance with regulations 3, 4 or 6 (or with regulation 2 of the Contracting-out (Transfer) Regulations 1985 M3), the 1993 Act shall have effect subject to the following modifications—

(a)[F43 where the transfer was of the accrued rights to guaranteed minimum pensions of an earner who was in employment which was contracted-out by reference to the receiving scheme, the modification of section 14(1) M4 (earner’s guaranteed minimum) specified in paragraph 3 of Schedule 2;]

(b)in the case of [F44any other [F44a]] transfer of the accrued rights of an earner to guaranteed minimum pensions, the modifications of sections 8(2) M5 (meaning of “guaranteed minimum pension"), 20(6) (transfer of accrued rights: meaning of “accrued rights") and 159 M6 (inalienability of guaranteed minimum pension and protected rights payments) specified in paragraphs 1, 4 and 5 of Schedule 2;

(c)in the case of any transfer of the liability for payment of guaranteed minimum pensions to or in respect of a person who had become entitled to them, the modifications of sections 8(2) and 159 specified in paragraphs 1 and 5 of Schedule 2;

(d)in the case of any transfer payment to an overseas scheme in respect of the accrued rights of an earner to guaranteed minimum pensions, the modification of section 46 M7 (effect of entitlement to guaranteed minimum pensions on payment of social security benefits) specified in paragraph 2 of Schedule 2.

Textual Amendments

Marginal Citations

M4Section 14 was amended by paragraph 27 of Schedule 5 to the Pensions Act 1995.

M5Section 8 was amended by section 136(2) of and paragraph 23 of Schedule 5 to the Pensions Act 1995.

M6Section 159 was amended by paragraph 41 of Schedule 3 to the Pensions Act 1995.

M7Section 46 was amended by paragraph 44 of Schedule 5 to the Pensions Act 1995.

Modifications of Part III of the 1993 Act on transfers from policies of insurance or annuity contracts

13.  Where a transfer to a [F45scheme that was a] salary-related contracted-out scheme, or a transfer payment to an overseas scheme, in respect of an earner’s accrued rights to guaranteed minimum pensions has taken place from an appropriate policy in accordance with regulation 3 or 6 (or with regulation 2A of the Contracting-out (Transfer) Regulations 1985), the 1993 Act shall have effect subject to the following modifications—

(a)[F46where the earner was in employment which was contracted-out by reference to the receiving scheme, the modification of section 14(1) specified in paragraph 7 of Schedule 2;]

(b)[F47where the earner was in employment which was not contracted-out by reference to the receiving scheme,] the modifications of sections 8(2), 20(6) and 159 specified in [F48paragraphs 5, 6 and 8] of Schedule 2;

(c)in the case of any transfer payment to an overseas scheme, the modification of section 46 specified in paragraph 2 of Schedule 2.

Textual Amendments

F4913A.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F50Modification of section 16: revaluation after transfer from another scheme

13B.—(1) This regulation applies [F51where an earner’s service in contracted-out employment ended on the second abolition date and] where the following conditions are satisfied—

(a)on or after 5th April 1983, a transfer of the earner’s accrued rights to guaranteed minimum pensions under a scheme (“scheme A”) was made (under or by virtue of section 20(1) of the 1993 Act) to another scheme (“scheme B”) that was at the time a contracted-out scheme;

(b)the earner commenced employment that was contracted-out by reference to scheme B;

(c)by virtue of section 14(1) of the 1993 Act, as modified by regulation 12(a), the calculation, under the provisions of scheme B, of the earner’s guaranteed minimum pension for the purposes of section 14(2) falls to include earnings factors arising out of contracted-out employment in any period of linked qualifying service that was contracted-out employment by reference to scheme A; and

(d)either—

(i)scheme B provides for the earnings factors to be increased at the rate by which they fell to be increased under the provisions of scheme A, or would have fallen to be increased under the provisions of that scheme relating to an earner whose pensionable service under the scheme terminated before the earner attained pensionable age;

(ii)if scheme A provided for those earning factors to be increased by reference to orders under section 148 of the Administration Act, scheme B provides for them to be increased in accordance with the provisions of section 16(2) and (3) of the 1993 Act;

(iii)if scheme A provided for those earnings factors to be increased in accordance with the provisions of section 16(2) and (3) of the 1993 Act, scheme B includes provision for them to be increased by reference to orders under section 148 of the Administration Act from the date of termination of the earner’s pensionable service under the scheme; or

(iv)if a transfer of the earner’s accrued rights to scheme B is not one to which paragraph (iii) applies and those rights were previously being increased at a rate calculated by reference to orders under section 148 of the Administration Act, scheme B includes provision for those earnings factors to be increased at a rate calculated otherwise than by reference to orders under that section.

(2) In paragraph (1), references to earnings factors include the weekly equivalent mentioned in section 14(2) of the 1993 Act.

(3) Where this regulation applies section 16(1) of the 1993 Act applies as if there were added at the end “or, in respect of the earner’s earnings factor (or the weekly equivalent mentioned in section 14(2)) for any relevant year in a period of linked qualifying service, shall be taken to be that factor (or weekly equivalent) as increased in accordance with the provisions of the scheme under regulations made under subsection (3)”.

(4) Where this regulation applies, the modifications of section 16(2) and (3) contained in paragraph (5) apply where earnings factors of an earner whose accrued rights to guaranteed minimum pensions, including such rights derived from linked qualifying service, have been transferred under or by virtue of section 20(1) of the 1993 Act to another scheme that was contracted-out.

(5) The modifications referred to in paragraph (4) are that section 16(2) and (3) of the 1993 Act applies as if it permitted that scheme to provide for those earnings factors to be determined for the purpose of section 14(2) of the 1993 Act without reference to any order coming into force under section 148 of the Administration Act—

(a)where such earnings factors had previously fallen to be determined by reference to orders under section 148 of the Administration Act, after the relevant year in which the earner’s pensionable service under the scheme, from which those rights were transferred, was terminated; or

(b)in any other case, in and after the relevant year in which that service was terminated,

and as if section 16(3) of the 1993 Act had effect accordingly, save, in a case to which paragraph (b) applies, for treating the reference to the amount of the increase in section 16(3) as a reference to the amount by which the earnings factors relevant to the weekly equivalent would be increased.]

Textual Amendments

PART V REVOCATIONS AND TRANSITIONAL PROVISIONS

Revocations and transitional provisions

14.—(1) Subject to paragraphs (2) and (3) and to Schedule 4, the regulations listed in column 2 of Schedule 3 (some of which are spent) are revoked to the extent specified in column 3 of that Schedule.

(2) Where a transfer such as is mentioned in regulation 12 has taken place in accordance with regulation 2 of the Contracting-out (Transfer) Regulations 1985, then paragraph 6 of Schedule 3 to those Regulations (as in force immediately before these Regulations came into force) 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.

(3) Where an application under section 95 of the 1993 Act (ways of taking right to cash equivalent) has been made before the principal appointed day, for the purposes of dealing with that application regulations 2 to 11 of these Regulations shall not apply and regulations 1, 2, 2A and 2B of the Contracting-out (Transfer) Regulations 1985 (as in force immediately before these Regulations came into force) shall continue to apply subject to the modifications set out in Schedule 4.

Signed by authority of the Secretary of State for Social Security.

Oliver Heald

Parliamentary Under-Secretary of State,

Department of Social Security

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