The Employers' Duties (Registration and Compliance) Regulations 2010

Escalating penalty notices E+W+S

13.—(1) Where an escalating penalty notice is issued to a person—

(a) in respect of a failure to comply with a third party compliance notice under section 36 of the Act; or

(b) (i) in respect of a failure to comply with a notice specified in paragraph (2)(a) or (b), and

(ii) that failure was by a person other than an employer,

the prescribed daily rate is £200.

(2) Paragraph (3) applies where an escalating penalty notice is issued to an employer in respect of a failure to comply with—

(a) a compliance notice under section 35 of the Act;

(b) a notice under section 72 of the Pensions Act 2004 M1 (provision of information); or

(c) an unpaid contributions notice under section 37 of the Act.

(3) Except where paragraph (1) applies, the prescribed daily rate is to be determined in accordance with Table 1 and the following paragraphs.

Table 1

Number of persons	Prescribed daily rate (£)
1-4 5-49 50-249 250-499 500 or more	50 500 2500 5000 10000

(4) In the first column of Table 1, the expression “Number of persons” is to be construed in accordance with paragraphs (5) [F1 (5A)] and (6).

(5) Where–

[F2 (a) paragraph (2)(a) or (b) applies, it is the relevant number except that—

(i) in the circumstances set out in paragraph (5A) the number of persons is the number of persons in the employer’s PAYE scheme or schemes that are employed by the employer; or

(ii) where the circumstances set out in paragraph (5A) do not apply and, in the Regulator’s opinion the relevant number is not known, paragraph (7) applies;]

(b) paragraph (2)(c) applies, it is–

(i) the number of workers in respect of whom the Regulator is of the opinion that the employer has not paid relevant contributions on or before the due date (within the meaning of section 37(3) of the Act); or

[F3 (ii) where in the Regulator’s opinion the number in paragraph (i) is not known, the relevant number except that—

(aa) where paragraph (5A) applies the number of persons is the number of persons in the employer’s PAYE scheme or schemes that are employed by the employer; or

(bb) where paragraph (5A) does not apply and, in the Regulator’s opinion, the relevant number is not known, paragraph (7) applies.]

[F4 (5A) This paragraph applies where—

(a) the Regulator is of the opinion that an employer’s PAYE scheme (or where the Regulator is of the opinion that the employer has more than one PAYE scheme, the schemes) includes persons who are not employed by the employer; and

(b) the number of persons in the employer’s PAYE scheme (or where the Regulator is of the opinion that the employer has more than one PAYE scheme, the schemes) who are employed by the employer is known to the Regulator. ]

(6) In this regulation, the Regulator must use the latest information reasonably available to it up to and including the day on which the Regulator issues an escalating penalty notice [F5 , including]—

(a) where paragraph (2)(a) and (b) apply, [F6 information] disclosed to it under section 88 of the Pensions Act 2004; and

(b) where paragraph (2)(c) applies [F7 , information]–

(i) contained in a late payment report,

(ii) contained in a report given to the Regulator under section 70 of the Pensions Act 2004, or

(iii) disclosed to it under section 88 of the Pensions Act 2004.

(7) Where this paragraph applies, the prescribed daily rate must be treated as being £50.

[F8 (8)  In this regulation, “relevant number” means the number of persons within an employer’s PAYE scheme or, where the Regulator is of the opinion that the employer has more than one PAYE scheme, the total number of persons within those schemes. ]

Textual Amendments

F1 Words in reg. 13(4) inserted (1.7.2012) by The Automatic Enrolment (Miscellaneous Amendments) Regulations 2012 (S.I. 2012/215), regs. 1(2)(c), 15(2)

F2 Reg. 13(5)(a) substituted (1.7.2012) by The Automatic Enrolment (Miscellaneous Amendments) Regulations 2012 (S.I. 2012/215), regs. 1(2)(c), 15(3)(a)

F3 Words in reg. 13(5)(b) substituted (1.7.2012) by The Automatic Enrolment (Miscellaneous Amendments) Regulations 2012 (S.I. 2012/215), regs. 1(2)(c), 15(3)(b)

F4 Reg. 13(5A) inserted (1.7.2012) by The Automatic Enrolment (Miscellaneous Amendments) Regulations 2012 (S.I. 2012/215), regs. 1(2)(c), 15(4)

F5 Words in reg. 13(6) inserted (1.7.2012) by The Automatic Enrolment (Miscellaneous Amendments) Regulations 2012 (S.I. 2012/215), regs. 1(2)(c), 15(5)(a)

F6 Word in reg. 13(6)(a) inserted (1.7.2012) by The Automatic Enrolment (Miscellaneous Amendments) Regulations 2012 (S.I. 2012/215), regs. 1(2)(c), 15(5)(b)

F7 Words in reg. 13(6)(b) inserted (1.7.2012) by The Automatic Enrolment (Miscellaneous Amendments) Regulations 2012 (S.I. 2012/215), regs. 1(2)(c), 15(5)(c)

F8 Reg. 13(8) inserted (1.7.2012) by The Automatic Enrolment (Miscellaneous Amendments) Regulations 2012 (S.I. 2012/215), regs. 1(2)(c), 15(6)

Marginal Citations

M1 Subsections (1A) and (1B) were inserted by section 61(2) of the Pensions Act 2008.