The Pensions Regulator (TPR) has secured its first and second criminal convictions for a refusal to provide information
A partner of a law firm and his firm were recently ordered to pay more than £16,000 in fines and costs and a charity boss was fined £6,500 for refusing to provide TPR with requested information and documents.
Anthony Wilson and Ashley Wilson Solicitors LLP
Anthony Wilson, managing partner of Ashley Wilson Solicitors LLP, and his firm, were ordered to pay over £16,000 for refusing to give documents to TPR (for a period of almost nine months), which were required as part of TPR's wider investigation.
The documents that TPR requested related to a property linked to an individual who was involved in a TPR pension scam investigation. Neither Wilson nor his firm were connected with the investigation and there was no suggestion that their staff had done anything wrong in their dealings with the property. The firm claimed that it was having trouble locating the documents as they were stored at a separate site. Wilson subsequently confirmed that he had located the documents, and would provide them to TPR, but did not do so.
Despite TPR making numerous information requests, it was only when TPR entered the offices of the firm with a search warrant in March 2016 that the documents were secured. TPR decided that the failure to hand over the documents was so serious that it merited the criminal prosecution of both Wilson and his firm. This was the first time that TPR took such an action.
On 4 April 2017 both Wilson and Ashley Wilson Solicitors LLP pleaded guilty to refusing to provide documents required under section 72 of the Pensions Act 2004 without a reasonable excuse, which is an offence under section 77 of the Act.
On sentencing, the Judge explained that information notices were an important enforcement tool for TPR and had been used appropriately in the case. Wilson was ordered to pay a £4,000 fine, £7,500 in costs and a £120 victim surcharge. Ashley Wilson Solicitors LLP was ordered to pay a £2,700 fine, £2,500 costs and a £120 victim surcharge.
Nicola Parish, TPR’s Executive Director of Frontline Regulation, said: “Legal action could have been avoided if Mr Wilson or someone else at the firm had simply handed over the documents, as they should have done, because the information had already been retrieved from storage. As the court recognised, information notices are a key enforcement tool for TPR. We will not hesitate to prosecute those who prevent us gathering the vital data we need for our investigations".
Patrick McLarry, Chief Executive of Yateley Industries for the Disabled Limited
For 18 months Patrick McLarry refused to provide information and documents TPR had requested to assist in an investigation into unusual scheme investments (McLarry allegedly invested some of the fund in his wife’s antiques business).
McLarry was a former trustee of the charity's pension scheme. He was issued with an information notice from TPR in July 2015. McLarry refused to supply the requested documents and argued that the documents contained third party information, which if given to TPR, would be a breach of French privacy law (some of the documents were from a French bank account in McLarry's and his wife's name). He also claimed that the bank statements were protected by legal privilege, but subsequently claimed that he was refusing to provide the requested information as it may incriminate him.
McLarry's failure to hand over the requested documents was seen as sufficiently serious that it merited the prosecution of Mr McLarry. The Court found McLarry guilty for not providing required documents under section 72 of the Pensions Act 2004, which is an offence under section 77 of the Act.
The court ordered McLarry to pay a £2,500 fine, £4,000 costs, and a £120 victim surcharge.
Wedlake Bell comment
TPR's recent robust reaction to those who have failed to comply with their requests shows a shift from TPR being a potentially powerful entity with no teeth, to one which can now bite. TPR's decision may seem a little unfair and overkill in the context of an individual such as McLarry, who has reportedly dedicated 18 years of work to the charity and been awarded an MBE for his services with people with disabilities. However, it is perhaps necessary for some to be made examples of to demonstrate that TPR is taking non-compliance issues seriously, and will not give leniency to those who cause delay, waste time or scupper any of TPR's investigations. TPR's new and tougher approach in dealing with such situations is welcomed. Private practice law firms, actuaries, trustees and employers are already careful to adhere to all forms of guidance and principles set out by TPR – is it not also time for these mentioned groups to equally respect and understand the serious and financial consequences of not complying with TPR in other regards?