Pensions Ready Reckoner – May 2021

19 / 05 / 2021

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

PARLIAMENT
Recent LegislationDateEffect
Administration RegulationsMade 29/03/2021 and into force 30/04/2021Regulations require an independent opinion on business/asset purchase within the first 8 weeks of administration, unless the creditors have approved the sale. WB comment – this provides greater transparency, especially where the seller has a DB pension scheme.
Pensions Schemes Act 2021    Royal Assent 11/02/2021The Act applies in stages once ancillary Regulations have been made and brought into effect in October 2021 and April 2022. The key changes are described in the following articles in March 2021 Pensions Compass:
Click here for climate change
Click here for TPR’s new anti-avoidance powers and the new criminal offences
Click here for other key changes
Finance Act 2020Royal Assent 22/07/2020Tapering of annual allowance – relaxations
Corporate Insolvency and Governance Act 2020Royal Assent 25/06/2020Introduces new Moratorium provisions and a new Restructuring Plan, continuation of certain contracts, and changes to wrongful trading law. For impact on DB schemes, click here to our “Pension deficits regulated” article in July 2020 Pensions Compass.
Proposed LegislationDateEffect
Online Safety Bill       Bill published 12 May 2021    Following adverse comment, on 13 May 2021 the Government announced the Bill will also bring “user-generated fraud into the scope of the regulatory framework“. WB comment: better late than never, hopefully this will make life more difficult for pension scammers plus see next item.
Pension scams – conditions for transfersConsultation on draft Regulations 14 May 2021The long awaited restrictions on transfers, to counter pension scams. The Consultation closes on 10 June 2021. Expected effective date for the finalised Regulations is 1 October 2021.
Finance (No. 2) Bill    Bill published 11 March 2021 Royal Assent expected July 2021Provisions for collective defined contribution schemes (introduced under Pension Schemes Act 2021) to be treated as registered pension schemes for tax purposes.The lifetime allowance to be frozen at its current level of £1,073,100 until April 2026 – disappointing for affected members.
Money Laundering and Terrorist Financing Regulations 202006/04/2021 (part)
10/03/2022 (fully)
Among other changes, registered pension schemes and certain other arrangements do not have to register under HMRC’s Trust Registration Service but certain other unregistered pension schemes are required to register.
Draft Climate Change Governance and Reporting Regulations 202101/10/2021Specifies matters on which trustees of certain (large) occupational pension schemes are required to have knowledge and understanding – click here for the article in March 2021 Pensions Compass. See also TPR’s strategy on climate change published on 7 April 2021.  
Draft Governance and Amendment RegulationsDelayed, expected in 2022Regulations to align pension legislation with the Competition & Markets Authority Order 2019 relating to investment consultants and fiduciary managers.
Increase in Normal Minimum Pension age from 55 to 57Draft legislation expected Summer 2021 (legislation to be in Finance Bill 2022)The Treasury and HMRC joint Consultation opened on 11 February 2021 and closed on 22 April 2021.
SuperfundsBy 2024Proposed legislative basis for Superfunds and their authorisation. On 12 February 2021 the Pensions Minister announced that a Pensions Bill for Superfunds would not be included in the Bills to go before Parliament this year, but he did not rule out a Bill before the next general election in 2024. Meanwhile TPR’s interim regime for Superfunds continues.
Regulations under Pension Schemes Act 2021
Proposed LegislationDateEffect
(1) Draft Pensions Regulation Contribution Notices Regulations 2021Expected 01/10/2021On 18 March 2021, DWP issued the draft Regulations for Consultation. The Consultation closed on 29 April 2021. The Regulations detail the “employer resources test” for TPR’s new anti-avoidance powers – click here for the article in March 2021 Pensions Compass.
(2) Draft Information Gathering Powers Regulations 2021Expected 01/10/2021The DWP’s Consultation on 18 March 2021 (mentioned above) also consults on these new Regulations, extending TPR’s interview and inspection powers and introducing penalties for non-compliance.

FORTHCOMING COURT DECISIONS – JUDGMENTS AWAITED
TopicEffect   
Incorrect amendments? Axminster Carpets High Court, March 2021Does the absence of confirmation under section 37 Pension Schemes Act 1993 (that the “reference scheme” contracting-out test would be met notwithstanding the amendments) invalidate the amendments?
FCA authorisation FCA v Avacade Court of AppealOn 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 is due to be heard by the Court of Appeal on 7 July 2021. 
RPI/CPIH Judicial ReviewOn 9 April 2021, the Ford, M&S and BT pension schemes announced they are applying for permission to bring judicial review proceedings against the Government re its decision on 25 November 2021 to align RPI with CPIH. Click here to see our article in December 2020 Pensions Compass “RPI – light at the end of the tunnel”.
PPF compensation Hughes v PPF Court of Appeal?The PPF and the DWP have 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 here. The appeal is due to be heard on 4 May 2021.
Improper investment Garner v Dalriada Court of Appeal?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. On 20 July 2020 Mr Garner applied to appeal the High Court decision.
Late notification for Fixed Protection 2012 Executors of Harrison v HMRCThe First-Tier Tribunal dismissed the taxpayer’s appeal on 3 February 2020. The taxpayer (through his executors) has appealed to the Upper Tribunal, hearing date fixed for 27 October 2021. The rules for late notification of Fixed Protection differ from the late claim rules  for Primary or Enhanced Protection – see Gibson v HMRC below under Recent Decisions.
Late application for enhanced and primary protection Ketley v HMRCThe 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. Upper-Tier Tax Tribunal appeal hearing due on 4 May 2021.
RPI/CPI Britvic plc v Britvic Pensions Court of AppealOn 17 January 2020 the High Court held that, based on the wording of the scheme rules, Britvic plc could not reduce the rate of increases for pensions in payment and a change could produce upward increases only. Britvic plc’s appeal is due to be heard on 12 or 13 May 2021. 
Incorrect amendments? Mitchells & Butlers High CourtWhether an amending deed adding the words in relation to pension increases “or any other rate decided by the principal employer” validly gave the principal employer this unilateral power. Due for hearing June/July 2021.

FROM THE COURTS    
TopicRecent decisions
Rectification SPS Technologies High Court, 11 September 2020Successful application for correction of scheme rules by the quick summary judgment route. Please see our article “Rectification of errors in your scheme documents” in September 2020 Pensions Compass here and our article published in the November 2020 edition of Pensions Today here.
GMP sex equalisation Lloyds Bank High Court, 20 November 2020In 2018 the High Court left open the impact of GMP sex equalisation on Transfers. The hearings on Transfers took place in May and October 2020. On 20 November 2020 the High Court ruled how Transfers should be treated for GMP sex equalisation purposes – see our article “Transfers and GMP Equalisation – Clarity at last?” in December 2020 Pensions Compass here.
Fraud Compensation Fund PPF v Dalriada Trustees High Court, 6 November 2020The High Court decided several matters relating to how the PPF should operate the Fraud Compensation Scheme.
Time limit for claiming Primary or Enhanced Protection for lifetime allowance Gibson v HMRC First-Tier Tribunal,
3 November 2020
The First Tier Tribunal decided that the taxpayer had a reasonable excuse for failing to meet the deadline of 6 April 2009 namely the taxpayer’s reliance on poor pension advice; and that the taxpayer had filed for protection without unreasonable delay after the excuse ceased.
SIPP residential investment – Trustee duties Cunningham v Namulas Pension Trustees Scottish Court of Session, 18 December 2020Whether Trustee has duty to avoid triggering a tax charge. Click here to see article in this Pensions Compass.
Transfer to Gibraltar QROPS – liability Burns v Burns High Court, 18 January 2021Whether transfer was a breach of trust. Click here to see article in this Pensions Compass.
Divorce – division of pension rights Finch v Baker Court of Appeal, 28 January 2021Whether different pension allocation available on appeal. Click here to see article in this Pensions Compass.
SIPP loss claims Adams v Options Court of Appeal, 2 March 2021Whether 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 this Pensions Compass.

OTHER DEVELOPMENTS     
TopicEffect   
TPR Guidance to Trustees – “Protecting schemes from sponsoring employer distress”On 12 November 2020, TPR issued new Guidance to trustees regarding the profound effect of COVID-19 on many businesses, and also highlights TPR’s expectations of trustees in the context of corporate transactions.
Superfunds – Further TPR GuidanceIn October 2020, TPR issued further Guidance on TPR’s expectations for transfers from DB schemes to Superfunds. See our article in the December 2020 Pensions Compass “Quick review of Superfundshere. 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 proposalsIn 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 closes on 15 June 2021.
TPR Interim Response to Funding Code of Practice Consultation – January 2021TPR sets out its interim views and promises a further Consultation on its Funding Code of Practice. The Code together with separate provisions in Pension Schemes Act 2021 (relating to trustees having a funding and investment strategy and preparing a written statement) are unlikely to come into force until April 2022.
PASA Guidance on Tax and GMP EqualisationIn February 2021 the Pensions Administration Standards Association published its Guidance on tax issues on GMP equalisation.
TPR draft Single Code of PracticeOn 17 March 2021, TPR issued a Consultation on amalgamating its existing 15 individual Codes into a Single New Code. The Consultation closes on 26 May 2021. WB comment: this is a mammoth undertaking by TPR – hopefully a useful and more navigable single document will result.
TPR and FCA – FCA RegulationUseful updated Guidance for employers and trustees re their support for members on financial matters without needing FCA authorisation.