The Occupational Pension Schemes (Collective Money Purchase Schemes) Regulations 2022

Regulation 8

SCHEDULE 1 Fit and proper persons requirement

1.—(1) In this Schedule—

“arrangement” means a voluntary arrangement entered into by an individual with their creditors;

“the Bankruptcy Act” means the Bankruptcy (Scotland) Act 2016(1);

“the Insolvency Act” means the Insolvency Act 1986(2);

“the Insolvency Order” means the Insolvency (Northern Ireland) Order 1989(3);

“the registrar of companies” has the meaning given by section 1060(3) of the Companies Act 2006.

(2) In paragraph 2(a)—

“adjudicator” has the meaning given by section 385(1) of the Insolvency Act(4);

“creditor” has the meaning given by section 383(1) of the Insolvency Act(5).

(3) In paragraph 2(b)—

“the Accountant in Bankruptcy” has the meaning given by section 199(1) of the Bankruptcy Act;

“creditor” has the meaning given by section 383(1) of the Insolvency Act;

“debtor application” has the meaning given by section 228(1) of the Bankruptcy Act;

“sequestration” has the meaning given by section 1 of the Bankruptcy Act.

(4) In paragraph 2(c)—

“bankrupt”, “bankruptcy order” and “bankruptcy petition” have the meanings given in Article 9(1) of the Insolvency Order;

“the court” is defined in rule 0.2 of the Insolvency Rules (Northern Ireland) 1991(6);

“creditor” has the meaning given in Article 9(1) of the Insolvency Order.

2.  For the purposes of section 11(3)(a) of the Act (fit and proper persons requirement), the Regulator must take into account the following matters when assessing whether a person is fit and proper to act in a capacity mentioned in section 11(2) of the Act—

(a) whether, in England and Wales, the person has—

(i) made any arrangement with the person’s creditors;

(ii) applied to an adjudicator under section 263H of the Insolvency Act(7) (bankruptcy applications to an adjudicator) for a bankruptcy order within the meaning given by section 381(2) of the Insolvency Act(8) (“bankrupt” and associated terminology);

(iii) been served with a bankruptcy petition within the meaning given by section 381(3) of the Insolvency Act;

(iv) been made bankrupt within the meaning given by section 381(1) of the Insolvency Act(9);

(v) been the subject of a bankruptcy restrictions order made under paragraph 1 (bankruptcy restrictions order) of Schedule 4A to the Insolvency Act(10) (including an interim bankruptcy restrictions order made under paragraph 5 (interim bankruptcy restrictions order) of that Schedule); or

(vi) offered a bankruptcy restrictions undertaking made under paragraph 7 (bankruptcy restrictions undertaking) of Schedule 4A to the Insolvency Act;

(b) whether, in Scotland, the person has—

(i) made any arrangement with the person’s creditors;

(ii) made a debtor application to the Accountant in Bankruptcy for sequestration;

(iii) been served with a petition for sequestration;

(iv) been the subject of an award of sequestration in accordance with section 22 of the Bankruptcy Act (when sequestration is awarded); or

(v) been the subject of a bankruptcy restrictions order within the meaning given by section 155(1) (bankruptcy restrictions order) of the Bankruptcy Act (including an interim bankruptcy restrictions order within the meaning given by section 160 (interim bankruptcy restrictions orders) of that Act);

(c) whether, in Northern Ireland, the person has—

(i) made any arrangement with the person’s creditors;

(ii) petitioned the court for a bankruptcy order;

(iii) been served with a bankruptcy petition;

(iv) been adjudged bankrupt;

(v) been the subject of a bankruptcy restrictions order made under paragraph 1 (bankruptcy restrictions order) of Schedule 2A to the Insolvency Order(11) (including an interim bankruptcy restrictions order made under paragraph 5 (interim bankruptcy restrictions order) of that Schedule); or

(vi) offered a bankruptcy restrictions undertaking made under paragraph 7 (bankruptcy restrictions undertaking) of Schedule 2A to the Insolvency Order;

(d) whether the person has been a director(12) or partner of, or otherwise concerned in the management of, a business that has gone into insolvency, liquidation or administration while the person was concerned with that business or within one year of their being so concerned;

(e) whether—

(i) in Great Britain, the person has been convicted of any criminal offence, excluding convictions that are spent within the meaning of the Rehabilitation of Offenders Act 1974(13); or

(ii) in Northern Ireland, the person has been convicted of any criminal offence, excluding convictions that are spent within the meaning of the Rehabilitation of Offenders (Northern Ireland) Order 1978(14);

(f) whether there has been a judgment against the person or the person has reached a settlement in civil proceedings, particularly in connection with investment or other financial business, misconduct, fraud or the formation or management of a body corporate;

(g) whether—

(i) in Great Britain, the person has been subject to a disqualification order under section 1(1) (disqualification orders: general), or a disqualification undertaking under section 1A(1) (disqualification undertakings: general) of the Company Directors Disqualification Act 1986(15); or

(ii) in Northern Ireland, the person has been subject to a disqualification order under Article 3(1) (disqualification orders: general), or a disqualification undertaking under Article 4(1) (disqualification undertakings: general) of the Company Directors Disqualification (Northern Ireland) Order 2002(16);

(h) whether the person has contravened any of the requirements or standards of—

(i) a regulator, including the Regulator; or

(ii) the registrar of companies(17);

(i) any information received from—

(i) a regulator; or

(ii) the registrar of companies;

(j) the person’s conduct in relation to, or arising out of or in connection with, any work the person has carried out in one or more of the capacities mentioned in section 11(2) of the Act—

(i) in the period of five years ending with the date of the application for authorisation of the scheme; and

(ii) at any time since the date of the application for authorisation of the scheme;

(k) whether—

(i) in Great Britain, the person has been prohibited from being a trustee of any trust, including any trust scheme within the meaning of section 124(1) of the 1995 Act (interpretation of Part 1), under—

(aa) section 3 of the 1995 Act(18) (prohibition orders), or

(bb) any other legislation; or

(ii) in Northern Ireland, the person has been prohibited from being a trustee of any trust, including any trust scheme within the meaning of Article 121(1) of the Pensions (Northern Ireland) Order 1995(19) (interpretation of Part 2), under—

(aa) Article 3 of the Pensions (Northern Ireland) Order 1995(20) (prohibition orders), or

(bb) any other legislation;

(l) whether—

(i) in Great Britain, the person has been disqualified from being a trustee of any trust, including any trust scheme within the meaning of section 124(1) of the 1995 Act, under—

(aa) section 29 of the 1995 Act(21) (persons disqualified from being trustees), or

(bb) any other legislation; or

(ii) in Northern Ireland, the person has been disqualified from being a trustee of any trust, including any trust scheme within the meaning of Article 121(1) of the Pensions (Northern Ireland) Order 1995, under—

(aa) Article 29 of the Pensions (Northern Ireland) Order 1995(22) (persons disqualified for being trustees), or

(bb) any other legislation.

3.  For the purposes of section 11(3)(a) of the Act, the Regulator must take into account—

(a) the knowledge and skills gained from a person’s significant experience as a trustee, in assessing whether the person is fit and proper to act in that capacity;

(b) whether a person has successfully completed such relevant training as may be set out in a Code, in assessing whether the person is fit and proper to act in the capacity of a trustee of the scheme;

(c) the collective expertise and experience of persons acting together in the capacity of trustees, in assessing whether they are fit and proper to act in that capacity.

(1)

2016 asp 21.

(2)

1986 c. 45.

(3)

S.I. 1989/2405 (N.I.19).

(4)

Section 385(1) was amended by paragraphs 1 and 55 of Schedule 19 to the Enterprise and Regulatory Reform Act 2013.

(5)

Section 383(1) was amended by section 170(2) of and Schedule 16 to the Criminal Justice Act 1988 (c. 33) and paragraphs 1 and 53 of and Schedule 19 to the Enterprise and Regulatory Reform Act 2013.

(6)

S.R. 1991 No. 364.

(7)

Section 263H was inserted by section 71(2) of and Schedule 18 to the Enterprise and Regulatory Reform Act 2013 (c. 24).

(8)

Section 381(2) was amended by paragraphs 1 and 52 of Schedule 19 to the Enterprise and Regulatory Reform Act 2013.

(9)

Section 381(1) was amended by paragraphs 1 and 52 of Schedule 19 to the Enterprise and Regulatory Reform Act 2013.

(10)

Schedule 4A was inserted by section 257(2) of and Schedule 20 to the Enterprise Act 2002 (c. 40).

(11)

Schedule 2A was inserted by S.I. 2005/1455 (N.I.10).

(12)

“Director” is defined in section 11(6) of the Act for the purposes of that section as having the meaning given in section 251 of the Insolvency Act 1986 (c. 45).

(13)

1974 c. 53.

(14)

S.I. 1978/1908 (N.I.27).

(15)

1986 c. 46; section 1(1) was amended by section 5(1) of the Insolvency Act 2000 (c. 39) and section 204(1) and (3) of the Enterprise Act 2002 (c. 40). Section 1A(1) was inserted by section 6(1) and (2) of the Insolvency Act 2000 (c. 39) and was amended by and paragraphs 1 and 3 of Schedule 7 to the Small Business, Enterprise and Employment Act 2015 (c. 26).

(16)

S.I. 2002/3150 (N.I.4). Article 3(1) was amended by S.I. 2005/1454 (N.I.9). Article 4(1) was amended by paragraph 9(4)(a) of Schedule 8 to the Small Business, Enterprise and Employment Act 2015 (c. 26).

(17)

“Registrar of companies” is defined in section 1060(3) of the Companies Act 2006.

(18)

Section 3 was substituted by section 33 of the 2004 Act and amended by S.I. 2010/22.

(19)

S.I. 1995/3213 (N.I.22).

(20)

Article 3 was substituted by S.I. 2005/255 (N.I. 1) and was amended by paragraph 3 of Schedule 1 to and Schedule 3 to the Pensions Regulator Tribunal (Transfer of Functions) Act (Northern Ireland) 2010 (c. 4 (N.I.)).

(21)

Section 29 was amended by paragraphs 34 and 45 of Schedule 12 to and Schedule 13 to the 2004 Act, section 106(2) of and paragraph 8 of Schedule 16 to the Tribunals Courts and Enforcement Act 2007 (c. 15) and S.I. 2004/1941, 2006/1722, 2009/1941, 2012/2404 and 2016/481.

(22)

Article 29 was amended by S.I. 2002/3150 (N.I.4), S.I. 2005/255 (N.I. 1) and S.R. 2008 No. 94 and 2016 No. 108.