Part 5 – Pensions Ready Reckoner

29 / 03 / 2022

Clive Weber, Consultant, Pensions & Employee Benefits Team. Please contact Clive with any queries on this Ready Reckoner.

PARLIAMENT
Recent LegislationEffective DateEffect
Finance Act 2022 – Royal Assent 24/02/20226 April 2022Various measures including:
• Tax provisions to facilitate the transfer of dormant assets (see below).
• 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 February 2022 Pensions Compass; our recent article in
“Professional Pensions” can be viewed here.
Dormant Assets Act – Royal Assent 25/02/2022Spring 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.
DC schemes – Administration Investment, Charges & Governance Regulations1/10/2021Increased reporting obligations on DC scheme trustees; and changes to the permitted charging rules.
Occupational and Personal Pension Schemes (Conditions for Transfers)  Regulations30/11/2021Helping trustees spot and block transfer requests caused by scammers. Click here for our article in December 2021 Pensions Compass. Recently DWP has agreed that references to overseas investments in the Regulations may need amending.
Occupational Pension Schemes (Charges and Governance) Amendment Regulations6/4/2022Amends 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 20221/8/2022

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 Regulations 2022 – Requirements to refer DC members to Guidance22/6/2022
(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. Click here for our article summarising the “stronger nudge” Regulations and giving practical tips for scheme trustees.
Proposed LegislationDateEffect
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.
Conversion of Guaranteed Minimum Pensions BillSummer 2022?This Private Member’s Bill, aimed at making the GMP Conversion legislation more workable, has completed its House of Commons Stages, had its First Reading in the House of Lords on 28 February 2022 and the Second Reading on 25 March 2022. The Bill has Government support. It is hoped it will complete all its Parliamentary stages by early May 2022. The timetable for important ancillary Regulations remains unclear.
Governance and Amendment Regulations re Investment Consultants and Fiduciary ManagersDelayed, expected by 30/06/2022Alignment of pension legislation with the Competition & Markets Authority Order 2019.
SuperfundsBy 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.
Notifiable Events Amendment Regulations (DB schemes)Originally expected by 01/04/2022. Now by Summer 2022?New events to be notified to TPR and in certain cases to 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 overdue. The timing and content of the notifications are controversial – click here to listen to our December 2021 Podcast.
Climate Change(1) Treasury paper 18/10/2021 “Greening Finance”(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 disclosures already required for the largest schemes.
Climate Change(2) (DWP Consultation 1/10/2021 (closed 6/01/2022)
(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.
Draft Extension of Automatic Enrolment BillIntroduced in Parliament on 05/01/2022This Private Member’s Bill would extend AE to all jobholders aged at least 18 (presently age 22 minimum) and would remove the lower qualifying earnings threshold. The Bill is very unlikely to progress in this Parliament. The Minister has not ruled out future progress on these topics.
Draft Pensions Dashboard RegulationsConsultation published 31/01/2022The DWP’s Consultation closed on 13 March 2022. It is envisaged that large
schemes (minimum 1000 active/deferred members) will need to connect to the Dashboard between April 2023 to September 2024, with a timetable in 2024/2025 and onwards for smaller schemes. Click here for the article in this Pensions Compass on key legal concerns.

FORTHCOMING COURT DECISIONS – CASES PENDING/JUDGMENTS AWAITED
TopicEffect   
RPI/CPIH Judicial ReviewOn 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 CourtApplication 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 awaited after 22 March 2022 to determine whether the claim can proceed.

FROM THE COURTS – RECENT DECISIONS
TopicEffect
RPI Britvic v Britvic Pensions Court of Appeal, 10 June 2021On 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 ‘Axminister’ Penson Pension High Court, 17 June 2021The 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 2021The 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 Fundarticle in September 2020 Pensions Compass. The appeal was heard on 4 and 5 May 2021 and judgment was given on 19 July 2021. Click here for our Podcast on the Appeal Court judgment.
FCA authorisation FCA v Avacade Court of Appeal, 4 August 2021On 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. The prosecution hearing was due to take place at Derby Magistrates Court on 7 February 2022 but was postponed – new date awaited.
Incorrect amendments? Mitchells & Butlers Pension Plan High Court, 12 November 2021Whether 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 February 2022 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 2021The 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 2021The 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 UpperTier Tribunal (UTT) 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 2022The 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.
Death Benefits Punter Southall v Benge and Barrett High Court, 1 February 2022  The independent trustee concluded, having obtained supportive legal advice, that a luxurious lifestyle with the deceased member did not prevent the claimant being dependent on the deceased member for the “necessaries” of life. The High Court approved the trustee’s decision. Click here for the article in this Pensions Compass.
TPR fixed penalty notices Ease & Co v TPR First-Tier Tribunal, 31 January 2022The First Tier Tribunal dismissed the company’s appeal against TPR’s fixed penalty notice for the company failing to prepare its scheme’s annual governance statement, as the company’s lack of knowledge of the statutory requirement was not a reasonable excuse.
TPR escalating penalty notice Davey West Ltd v TPR First Tier Tribunal,
10 February 2022
TPR’s Unpaid Contributions Notice lead to TPR issuing a fixed penalty notice and subsequently an escalating penalty notice, for failure to pay auto-enrolment contributions for a 6 month period. The First Tier Tribunal found that TPR’s communications had been correctly addressed, and that the company’s problems with its pensions provider were not reasonable excuses; the penalty notices were upheld. Click here for the article in February 2022 Pensions Compass on how to deal with TPR penalty notices.

OTHER DEVELOPMENTS     
TopicEffect   
Regulation of Pensions Tax Advice – HMRC’s proposalsIn November 2020, HMRC responded following its March 2020 Consultation “Raising standards in the tax advice market”. On 23 March 2021 HMRC proposed that all tax advisers should have mandatory professional indemnity insurance and how to define “tax advice” for these purposes. The Consultation closed on 15 June 2021. Subsequently HMRC announced it would not pursue mandatory insurance. 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 ConsultationTPR 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 EqualisationThe Pensions Administration Standards Association (PASA) published the following: Guidance on tax issues, February 2021; Guidance on GMP Conversion, July 2021; Guidance on Transfers, August 2021; and GMP Equalisation FAQs Guidance, March 2022. Whilst useful, the PASA Guides are not a substitute for legal and other professional advice.
TPR draft Single Code of PracticeOn 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 ProsecutionsTPR’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 2021In September 2021 TPR consulted on 3 new policies in the context of Pension Schemes Act 2021 namely (1) its policy about using different powers in relation to the same circumstances; (2) policy on its power to issue high fines of up to £1 million; and (3) its policy on options for gathering information. The Consultation closed on 22 December 2021 and TPR’s finalised policies on these topics are awaited.
UK Government Green Financing FrameworkOn 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 UKOn 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. On 2 February 2022 the Secretary of State laid various documents in Parliament relating to international data transfers.
TPR’s views on trustees’ Climate Change obligationsIn 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 2021This update of TPR’s August 2017 Policy reflects its approach to breaches of the Climate Governance and Reporting Regulations.
State Pension Age (SPA) – DWP Consultation on accelerationOn 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 February 2022 Pensions Compass. Our recent article published in Professional Pensions can be viewed here.
Conflict in Ukraine – TPR Guidance 04/03/2022TPR’s Guidance for trustees on how to react to the events in Ukraine from the investment and employer covenant perspective. Click here to read our article in this issue of Pensions Compass.