Clive Weber, Consultant, Pensions & Employee Benefits Team. Please contact Clive with any queries on this Ready Reckoner.
| PARLIAMENT | ||
| Recent Legislation | Effective Date | Effect |
| Pension Schemes Act 2021 (Royal Assent 11/01/2021) – key provisions: | ||
| Climate Change | 1/10/2021 | Climate Change Regulations imposing reporting obligations on large schemes – click here for article in December 2021 Pensions Compass. |
| Contribution Notices powers and new criminal offences | 1/10/2021 | Widens TPR’s anti-avoidance powers relating to DB schemes – click here for table in September 2021 Pensions Compass. |
| Employer Resources Regulations | 1/10/2021 | Ancillary to TPR’s new Contribution Notice power – circumstances where employer resources treated as reduced. |
| Information Powers Regulations | 1/10/2021 | Wider powers for TPR to issue information notices, hold interviews and inspect premises. |
| Transitional Regulations | 1/10/2021 | Certain events prior to 1 October 2021 disregarded for TPR’s above new anti-avoidance powers. |
| DC schemes – Administration Investment, Charges & Governance Regulations | 1/10/2021 | Increased reporting obligations on DC scheme trustees; and changes to the permitted charging rules. |
| Occupational and Personal Pension Schemes (Conditions for Transfers) Regulations | 30/11/2021 | Helping trustees spot and block transfer requests caused by scammers. Click here for our article in December 2021 Pensions Compass. |
| Occupational Pension Schemes (Charges and Governance) Amendment Regulations | 6/4/2022 | Amends 2015 Regulations so as to prohibit an annual flat fee for members in default arrangements of relevant schemes which would reduce members’ rights to less than £100. |
| Occupational Pension Schemes – Collective Money Purchase Schemes Regulations 2022 | 1/8/2022 (subject to Parliamentary approval) | Specifies the authorisation and supervisory regime for Collective Defined Contribution (CDC) schemes, under which scheme members share investment and longevity risk – Royal Mail employees are the first candidates. |
| Occupational Pension Schemes – Requirements to refer DC members to Guidance | 22/6/2022 (subject to Parliamentary approval) | Known as the “stronger nudge” initiative, trustees of relevant DC schemes must send more information to DC members to help ensure members receive relevant guidance before they can transfer or access their flexible DC benefits. |
| Proposed Legislation | Date | Effect |
| Dormant Assets Bill (published 11/05/2021) | Spring 2022? | Aimed at reuniting individuals with their ‘lost’ financial assets, and where not possible, providing for the money to be used for social and environmental purposes. |
| Online Safety Bill (published 11/05/2021) | Spring 2022? | Hopefully will make life harder for pension scammers and other fraudsters. See also the Conditions For Transfers Regulations above. |
| Finance (No. 2) Bill 2021‑2022 (published 04/11/2021) | Spring 2022 (to have effect from 6 April 2022) | Various measures including: Tax provisions to facilitate the transfer of dormant assets (see above). Changes to scheme administrators’ obligations to pay members annual allowance charges under mandatory Scheme Pays. Increase in normal minimum pension age from age 55 to 57 from 6 April 2028; click here for the article in this Pensions Compass. |
| Conversion of Guaranteed Minimum Pensions Bill | Summer 2022? | This Private Member’s Bill, aimed at making the GMP Conversion legislation more workable, had its Second Reading in the House of Commons on 26 November 2021 and now has Government support. The timetable for progress on the Bill and important ancillary Regulations is unclear. |
| Governance and Amendment Regulations re Investment Consultants and Fiduciary Managers | Delayed, expected by 30/06/2022 | Alignment of pension legislation with the Competition & Markets Authority Order 2019. |
| Superfunds | By 2024? | The Government has not ruled out a Bill for the authorisation of superfunds (Pensions Minister’s announcement 12 February 2021). Meanwhile, TPR’s interim regime for superfunds continues and last Autumn TPR named Clara – Pensions as the first consolidator vehicle to meet TPR’s standards, see further under “Other Developments” in this Pensions Compass. |
| Notifiable Events Amendment Regulations (DB schemes) | Expected 1/04/2022 | New events to be notified to TPR and in certain cases scheme trustees (change in control of an employer, sale of material proportion of business or assets and/or granting of certain security rights). DWP’s Consultation on these proposed Regulations closed on 27 October 2021 and DWP’s response is now due. The timing and content of the notifications are controversial – click here for our Podcast. |
| Climate Change | (1) Treasury paper 18/10/2021 “Greening Finance” (2) (DWP Consultation 1/10/2021 (closed 6/01/2022) | (1) Government’s wide ranging policy document relating to more disclosure on climate measures. For scheme trustees these measures once developed will be in addition to the TCFD disclosures already required for the largest schemes. (2) Proposed Regulations to amend the existing Climate Change Regulations (which came into force on 1/10/2021) to require the trustees of the largest occupational pension schemes to, so far as they are able, also adopt and apply a metric to report on how far the scheme’s investments align with the Paris Agreement climate goal. It is envisaged this requirement will apply from 1/10/2022. Click here for the article in December 2021 Pensions Compass. The DWP Consultation includes useful draft Guidance explaining the metrics and the alignment process. Other matters in the DWP Consultation: In relation to trustees’ stewardship of scheme investments, DWP proposes to issue non-statutory Guidance regarding how voting rights and investor engagement is dealt with in schemes’ statements of investment principles, and to issue statutory Guidance so schemes make their Implementation Statements more meaningful e.g. as to the exercise of voting rights. |
FORTHCOMING COURT DECISIONS – CASES PENDING/JUDGMENTS AWAITED | |
| Topic | Effect |
| RPI/CPIH Judicial Review | On 9 April 2021, the Ford, M&S and BT pension schemes announced they were applying for permission to bring judicial review proceedings against the Government re the Government’s decision on 25 November 2021 to align the basis of RPI with CPIH from 2030 and without any compensation. Click here to see our article in December 2020 Pensions Compass “RPI – light at the end of the tunnel”. On 22 December 2021, the High Court gave permission for the judicial review, which is expected to be heard in Summer 2022. |
| Whether Valuation valid and other matters Bristol UCU and others v Trustee of Universities Superannuation Scheme (USS) High Court | Application to High Court to bring proceedings against the USS for alleged breach of duties in relation to Valuation and other matters and as to the validity of proposed benefit cuts. Hearing date awaited. |
FROM THE COURTS – RECENT DECISIONS | |
| Topic | Effect |
| SIPP loss claims Adams v Options Court of Appeal, 2 March 2021 | Whether the SIPP provider and administrator is liable to the SIPP member for investment loss where the member decided to invest in store pods. The High Court decided that the contract was ‘execution only’ and there was no liability. The Court of Appeal in its judgment on 1 April 2021 upheld the High Court’s view. However, Mr Adams’ claim succeeded in part on other grounds – click here for the article in May 2021 Pensions Compass. The SIPP provider sought to appeal to the Supreme Court but permission to appeal was refused on 30 July 2021. |
| RPI Britvic v Britvic Pensions Court of Appeal, 10 June 2021 | On 17 January 2020 the High Court decided that “or any other rate decided” by the Principal Employer permitted only a higher rate. The Court of Appeal reversed the High Court’s decision and decided that the words should have their literal meaning namely “any other rate, whether higher or lower”. |
| Limitation and forfeiture ‘Axminster’ Pension Plan High Court, 17 June 2021 | The same Judge as in the November 2020 Lloyds Bank GMP equalisation case (see above) confirmed his view that the Limitation Act does not apply to claims for pension arrears as they are claims to recover trust property. However, scheme forfeiture rules may limit such claims. Please click here for our review of the Axminister case in the July 2021 issue of Pensions Compass. |
| PPF compensation Hughes v PPF Court of Appeal, 19 July 2021 | The PPF and the DWP appealed the High Court decision in June 2020 that the PPF age cap is invalid and as to the High Court’s decision on the PPF’s methodology. See our “Hughes v Pension Protection Fund” article in September 2020 Pensions Compass. The appeal was heard on 4 and 5 May 2021 and judgment was given on 19 July 2021. See here for our Podcast on the Appeal Court judgment. |
| FCA authorisation FCA v Avacade Court of Appeal, 4 August 2021 | On 30 June 2020 the High Court decided that the two unregulated introducer companies were in breach of Regulation 19 of the Financial Services and Markets Act 2020. The appeal was heard by the Court of Appeal on 7 July 2021. In an unanimous judgment on 4 August 2021, the Appeal Court upheld the High Court’s decision – click here for the article in the September 2021 Pensions Compass. |
| Improper investment Garner v Dalriada | On 23 June 2020 the Pensions Ombudsman held the sole Trustee of the Norton Motorcycles Pension Scheme personally liable for loss arising from the Trustee’s investment in Norton Motorcycles’ preference shares. Mr Garner as Trustee had failed to take proper advice and had not diversified the Scheme’s investments. Mr Garner was given permission to appeal part of the Pensions Ombudsman’s decision but subsequently withdrew his appeal. On 20 August 2021 TPR announced it is prosecuting Mr Garner for alleged criminal offences – click here for our article in the September 2021 Pensions Compass. Mr Garner pleaded guilty at Derby Magistrates Court on 7 February 2022. |
| Incorrect amendments? Mitchells & Butlers Pension Plan High Court, 12 November 2021 | Whether an amending deed placing the power to decide the Index for pension increases in the principal employer in place of the trustees was valid. The High Court decided the parties had not intended to change the power to switch index which was originally vested in the plan trustee. The Court ordered the documents should be rectified (corrected) to restore the trustee’s power, and rejected the principal employer’s argument that, as the successor principal employer, rectification could not apply to it. Click here for the article in this Pensions Compass and here for our Podcast. |
| Corporation tax deduction disallowed Bly and CHR Travel v HMRC First Tier Tribunal, 26 November 2021 | The First Tier Tribunal decided HMRC was entitled to disallow corporation tax deductions claimed by 2 companies for their respective unapproved and unfunded retirement benefit schemes (UURBS); the FTT decided the arrangements were made to avoid tax (instead of wholly and exclusively for the provision of pension benefits) and disallowed the deductions under section 54 Corporation Tax Act 2009. |
| Late notification for Fixed Protection 2012 Executors of Harrison v HMRC Upper Tribunal, 27 October 2021 | The First-Tier Tribunal dismissed the taxpayer’s appeal on 3 February 2020. The taxpayer (through his executors) appealed to the Upper Tribunal. The appeal was dismissed by the Upper Tribunal. The rules for late notification of Fixed Protection differ from the late claim rules for Primary or Enhanced Protection. |
| Late application for enhanced and primary protection Ketley v HMRC Upper Tier Tribunal, 1 September 2021 | The First-Tier Tribunal dismissed the taxpayer’s appeal and held the taxpayer had no reasonable excuse for not filing for protection and for not notifying thereafter. The taxpayer appealed to the Upper Tier Tribunal which dismissed the taxpayer’s appeal – the 10 month delay in making a late notification was too long. |
| Interpreting Revaluation provisions De La Rue Pension Scheme High Court, 14 January 2022 | The High Court decided the employer’s interpretation of the Scheme’s revaluation rule for deferred pensions was the preferred interpretation – another reminder to ensure clarity in scheme rules. |
OTHER DEVELOPMENTS | |
| Topic | Effect |
| Superfunds – Further TPR Guidance | In October 2020, TPR issued further Guidance on TPR’s expectations for transfers from DB schemes to Superfunds. Click here for our article in the December 2020 Pensions Compass “Quick review of Superfunds”. Note – early legislation for Superfunds is no longer expected, see under Parliament – proposed legislation – in this issue of Pensions Compass. |
| Regulation of Pensions Tax Advice – HMRC’s proposals | In November 2020, HMRC summarised responses to its March 2020 Consultation “Raising standards in the tax advice market”. On 23 March 2021, HMRC issued a Consultation on its proposal to require tax advisers to have appropriate professional indemnity insurance and on how to define “tax advice” for these purposes. The Consultation closed on 15 June 2021. There are many unregulated “tax advisers” and HMRC continues to consider the best approach to protect consumers. |
| TPR’s June 2021 Interim Response to its January 2021 Funding Code of Practice Consultation | TPR is waiting for Government to consult on amendments to the Funding and Investment Regulations. Responses will inform TPR’s proposed Consultation in late Summer 2022 on its proposed new Funding Code of Practice. Amending Regulations and the new TPR’s Code are not expected to come into force before late 2022 at the earliest. |
| PASA Guidance on GMP Equalisation | The Pensions Administration Standards Association (PASA) has published the following during 2021: Guidance on tax issues, February 2021; Guidance on GMP Conversion, July 2021; Guidance on Transfers, August 2021. Whilst useful, the PASA Guides are not a substitute for legal and other professional advice. |
| TPR draft Single Code of Practice | On 17 March 2021, TPR consulted on amalgamating its existing 15 individual Codes into a Single New Code. The Consultation closed on 26 May 2021. On 24 August 2021 TPR published its interim response. In light of the large number of comments received, TPR has not set a firm publication date for the new Single Code but does not expect to lay it in Parliament before Spring 2022 and therefore it is unlikely to be effective before Summer 2022. WB comment: this is a mammoth undertaking by TPR – hopefully a useful and more navigable single document will result. |
| TPR’s Code of Practice and Guidance regarding its new anti-avoidance powers under Pension Schemes Act 2021, and its Policy on Prosecutions | TPR’s Code of Practice (with Guidance) on TPR’s additional powers to issue Contribution Notices and TPR’s Policy on Prosecuting the new criminal offences came into effect on 1 October 2021. |
| TPR Consultation on its Policies on enforcing certain new powers under Pension Schemes Act 2021 | TPR’s Consultation relates to 3 matters: its Policy where it has options under its anti-avoidance powers; its Policy re its new higher penalty fines; and its Policy re information gathering. The Consultation closed on 21 December 2021. |
| TPR’s Annual Funding Statement 2021 | On 26 May 2021 TPR published its Annual Funding Statement. This is of relevance not only to employers and trustees with scheme valuation dates between 22 September 2020 and 21 September 2021, but also on more general issues including covenant assessment, affordability of contributions and corporate transactions. |
| UK Government Green Financing Framework | On 30 June 2021 the Treasury published its Framework document ahead of the issue of “Green” gilts in September 2021. Click here for the article in July 2021 Pensions Compass “Is Green investment legal?”. |
| Data Protection – Transferring Personal Data outside the UK | On 11 August 2021, the Information Commissioner’s Office issued a Consultation on new rules for transferring personal data outside the UK. The Consultation closed on 7 October 2021. |
| TPR’s views on trustees’ Climate Change obligations | In December 2021 TPR finalised its Guidance on TPR’s approach to trustees’ compliance with the Climate Governance and Reporting Regulations which came into force on 1 October 2021 (see under Parliament, recent legislation, in this issue of Pensions Compass). TPR’s Guidance should be read alongside the DWP’s statutory guidance published in July 2021. |
| TPR’s updated Monetary Penalties Policy, December 2021 | This update of TPR’s August 2017 Policy reflects its approach to breaches of the Climate Governance and Reporting Regulations. |
| PPF Levy Rules for 2022/23 Levy Year | On 16 December 2021 the Pension Protection Fund published its finalised Rules for PPF Levies for the PPF year starting 1 April 2022. |
| State Pension Age (SPA) – DWP Consultation of acceleration | On 15 December 2021, the Government issued a review of whether the change to SPA from age 67 to age 68 should occur in 2037 to 2039 (in place of 2044 to 2046). Click here for the article on Normal Minimum Pension Age and SPA in this issue of Pensions Compass. |
| Consultation on changes to charge cap on default funds for auto-enrolment schemes | The DWP Consultation closed on 18 January 2022. If the proposals are implemented e.g. removal of performance based on fees from the DC charge cap, amending Regulations are expected in Spring 2022. This follows on from a report that DC schemes tend to focus on cost saving rather than value and potential returns. |
| DWP revised non-statutory Guidance – charge cap in auto-enrolment schemes | This revision to DWP’s 2015 Guidance on charge caps for default arrangements in auto – enrolment schemes takes effect from April 2022. |