The Occupational Pension Schemes (Winding Up Notices and Reports etc.) Regulations 2002

Applications to the Authority to modify schemes to secure winding up

8.—(1) This regulation applies where an application is made to the Authority under section 71A of the 1995 Act (modification by the Authority to secure winding up) to make an order modifying a scheme with a view to ensuring that it is properly wound up.

(2) The application must—

(a) set out the modification requested,

(b) specify the effects, if any, which the modification would or might have—

(i) on benefits under the scheme that are in payment at the time of the application, and

(ii) on benefits under it which are or may be payable at a later time,

(c) specify the reason for requesting the modification,

(d) specify whether any previous application has been made to the court or to the Authority for an order to make the modification requested by the application or any similar modification,

(e) confirm that at the time the application is made the employer in relation to the scheme is subject to an insolvency procedure (within the meaning given by section 71A(8) of the 1995 Act),

(f) specify whether the modification would reduce the value of the assets, if any, which might otherwise be distributed to that employer on the winding up, and

(g) contain a statement that the notices required by paragraph (3) have been given.

(3) Before making the application the trustees or managers of the scheme must give notice in writing that the application is being made—

(a) to all members of the scheme [F1 (except a member mentioned in paragraph (3A)) in accordance with regulations 26 to 28 of the Occupational and Personal Pension Schemes (Disclosure of Information) Regulations 2013 (giving information and documents), and]

(b) if the modification would reduce the value of the assets which might otherwise be distributed to the employer on the winding up, to the person acting as an insolvency practitioner in relation to the employer or, as the case may be, the official receiver;

and the references in sub-paragraph (b) to “acting as an insolvency practitioner” and “official receiver” are to be construed in accordance with sections 388 and 399 of the Insolvency Act 1986 M1 .

[F2 (3A) A member referred to in paragraph (3)(a) is a member—

(a) whose present postal address and electronic address is not known to the trustees or managers of the scheme, and

(b) in respect of whom the trustees or managers of the scheme have sent correspondence to their last known—

(i) postal address and that correspondence has been returned, or

(ii) electronic address and the trustees or managers of the scheme are satisfied that that correspondence has not been delivered.]

(4) A notice under paragraph (3) must—

(a) in the case of a notice under paragraph (3)(a), specify the information referred to in paragraph (2)(a), (b), (c) and (f),

(b) in the case of a notice under paragraph (3)(b), specify the information referred to in paragraph (2)(a) to (d) and (f),

(c) specify the date on which it is given, and

(d) contain a statement about the recipient’s rights under paragraph (5).

(5) A member of the scheme in respect of which the application is made or a person to whom a notice is to be given under paragraph (3)(b) may make representations to the Authority about the modification requested by the application during the period of one month beginning with the date specified under paragraph (4)(c).

(6) Before determining the application, the Authority must consider any representations duly made to them under paragraph (5).

(7) The application must be accompanied by the following documents—

(a) a copy of—

(i) the documents constituting the scheme or, if any of those documents have been consolidated, the consolidated version of them,

(ii) if the documents mentioned in sub-paragraph (a)(i) do not set out the rules of the scheme, those rules, and

(iii) any document which amends or supplements or wholly or partly supersedes any document within sub-paragraph (a)(i) or (ii),

(b) if an actuary is required to be appointed under section 47(1)(b) of the 1995 Act, a copy of any advice given by the actuary so appointed to the trustees or managers concerning the effects, if any, that the modification requested by the application would or might have on the assets of, or the benefits provided by, the scheme,

(c) subject to paragraph (9), a copy of any legal advice given to the trustees or managers in relation to the modification requested by the application,

(d) a copy of any determination by a court concerning the modification requested or any similar modification, and

(e) if a record is required to be kept under section 49A(1) of the 1995 Act of the trustees’ or managers’ determination that the scheme be wound up, a copy of that record.

(8) Subject to paragraph (9), if in dealing with the application it appears to the Authority necessary or desirable that any information or document which is not required to be given to them under paragraph (2) or (7) be given to them before they determine the application, they may require the trustees or managers to provide it.

(9) Nothing in paragraph (7)(c) or (8) requires a person to produce a document if he would be entitled to refuse to produce it in any proceedings in any court on the grounds that it was the subject of legal professional privilege or, in Scotland, that it contained a confidential communication made by or to an advocate or solicitor in that capacity.

Textual Amendments

F1 Words in reg. 8(3)(a) substituted (6.4.2014) by The Occupational and Personal Pension Schemes (Disclosure of Information) Regulations 2013 (S.I. 2013/2734), reg. 1(1), Sch. 9 para. 11(a)

F2 Reg. 8(3A) inserted (6.4.2014) by The Occupational and Personal Pension Schemes (Disclosure of Information) Regulations 2013 (S.I. 2013/2734), reg. 1(1), Sch. 9 para. 11(b)

Marginal Citations

M1 1986 c.45.