91 Procedure for issue and publication of codes of practice
(1) Where the Regulator proposes to issue a code of practice under section 90 or 90A it must prepare and publish a draft of the code.
(2) Where the Regulator publishes a draft under subsection (1), it must consult—
(a) such persons as it considers appropriate, and
(b) any other persons the Secretary of State requires it to consult.
(3) Having considered any representations made on the draft, the Regulator must make such modifications to it as it considers appropriate.
(4) Subsections (2) and (3) do not apply—
(a) to a code made for the purpose only of consolidating other codes issued under section 90 or 90A, or
(b) to a code if the Secretary of State considers consultation inexpedient by reason of urgency.
(5) If the Regulator determines to proceed with a draft, it must send it to the Secretary of State who—
(a) if he approves of it, must lay it before Parliament, and
(b) if he does not approve of it, must publish details of his reasons for withholding approval.
(6) Where a draft is laid before Parliament under subsection (5)(a)—
(a) if within the period mentioned in subsection (7) either House so resolves, no further proceedings may be taken on the draft code;
(b) if no such resolution is passed, the Regulator must issue the code in the form of the draft.
(7) The period referred to in subsection (6)(a) is the period of 40 days—
(a) beginning with the day on which the draft is laid before Parliament (or, if it is laid before the two Houses on different days, with the later of the two days), and
(b) ignoring any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(8) The fact that no further proceedings may be taken on a draft code in accordance with subsection (6)(a) does not prevent the laying of a new draft.
(9) A code issued in accordance with subsection (6)(b) shall come into effect on such day as the Secretary of State may by order appoint.
Without prejudice to section 315, such an order may contain such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient in connection with the code of practice brought into operation.
(10) The Regulator must arrange for any code issued by it under section 90 or 90A to be published in the way appearing to it to be appropriate.
(11) The Regulator may charge a reasonable fee for providing a person with a copy of a code published under this section.
(12) This section applies to a revised code as it applies to the first issue of a code.
(1) A code of practice under section 90 or 90A may be revoked by the Secretary of State by order.
(2) An order under this section may be made only with the consent of the Regulator.
(3) Without prejudice to section 315, an order under this section may contain such savings as appear to the Secretary of State to be necessary or expedient in connection with the revocation of the code.
93 The Regulator’s procedure in relation to its regulatory functions
(1) The Regulator must determine the procedure that it proposes to follow in relation to the exercise of its regulatory functions.
(2) For the purposes of this Part the “regulatory functions” of the Regulator are—
(a) the power to issue an improvement notice under section 13,
(b) the power to issue a third party notice under section 14,
(ba) the power to appoint a skilled person in relation to a public service pension scheme under section 14A,
(c) the reserved regulatory functions (see Schedule 2),
(d) the power to issue a clearance statement under section 42,
(e) the power to issue a notice under section 45(1) approving the details of arrangements,
(f) the power to issue a clearance statement under section 46,
(g) the power to vary or revoke under section 101 (to the extent that it does not fall within paragraph (c)),
(h) the power to make an order under section 154(8),
(i) the power to make an order under section 219(4),
(j) the power to grant or revoke authorisation under section 288,
(k) the power to grant or revoke approval under section 289,
(l) the power to issue a notice under section 293(5),
(m) the power by direction under section 2(3)(a) of the Welfare Reform and Pensions Act 1999 (c. 30) to refuse to register a scheme under section 2 of that Act,
(n) the power to make an order under section 7 of the Pensions Act 1995 (c. 26) appointing a trustee (to the extent that it does not fall within paragraph (c)),
(o) the power to make an order under section 23 of that Act appointing an independent trustee,
(p) the power to give directions under section 72B of that Act (directions facilitating winding up), ...
(pa) the power to give a direction under section 26(7) of the Pension Schemes Act 2017 (direction to submit implementation strategy for Master Trust scheme), ...
(pb) the power to give a direction under section 23(2) of the Pension Schemes Act 2021 (direction to obtain actuarial valuation or take other steps to remedy or mitigate failure in relation to a collective money purchase scheme),
(pc) the power to give a notice under section 29(1) , (1A) or (4) of that Act (risk notices),
(pd) the power to give a direction under section 29(6) of that Act (direction to implement proposals in a resolution plan),
(pe) the power to give a direction under section 39(4) of that Act (direction to submit implementation strategy), and
(q) such other functions of the Regulator as may be prescribed.
(3) The Determinations Panel must determine the procedure to be followed by it in relation to any exercise by it on behalf of the Regulator of—
(a) the power to determine whether to exercise a regulatory function, and
(b) where the Panel so determines to exercise a regulatory function, the power to exercise the function in question.
(4) The procedure determined under this section—
(a) must provide for the procedure required under—
(i) section 96 (standard procedure), and
(ii) section 98 (special procedure), and
(b) may include such other procedural requirements as the Regulator or, as the case may be, the Panel considers appropriate.
(5) This section is subject to—
(a) sections 99 to 104 (the remaining provisions concerning the procedure in relation to the regulatory functions), and
(b) any regulations made by the Secretary of State under paragraph 19 of Schedule 1.
94 Publication of procedure in relation to regulatory functions
(1) The Regulator must issue a statement of the procedure determined under section 93.
(2) The Regulator must arrange for the statement to be published in the way appearing to it to be appropriate.
(3) The Regulator may charge a reasonable fee for providing a person with a copy of the statement.
(4) If the procedure determined under section 93 is changed in a material way, the Regulator must publish a revised statement.
(5) The Regulator must, without delay, give the Secretary of State a copy of any statement which it issues under this section.
(1) The Regulator must comply with the standard procedure (see section 96) or, where section 97 applies, the special procedure (see section 98) in a case where—
(a) the Regulator considers that the exercise of one or more of the regulatory functions may be appropriate, or
(b) an application is made under or by virtue of—
(i) any of the provisions listed in section 10(6), or
(ii) any prescribed provision of this or any other enactment,
for the Regulator to exercise a regulatory function.
(2) For the purposes of section 96, references to the regulatory action under consideration in a particular case are—
(a) in a case falling within subsection (1)(a), references to the exercise of the one or more regulatory functions which the Regulator considers that it may be appropriate to exercise, and
(b) in a case falling within subsection (1)(b), references to the exercise of the regulatory function which is the subject-matter of the application.
(3) Neither section 96 (standard procedure) nor section 98 (special procedure) apply in relation to a determination whether to exercise a regulatory function on a review under section 99 (compulsory review of regulatory action).
(1) The procedure determined under section 93 must make provision for the standard procedure.
(1A) In any case where—
(a) a warning notice is given to any person in respect of a contribution notice under section 38, and
(b) the contribution notice under consideration would be issued wholly or partly by reference to the Regulator's opinion that the material detriment test , the employer insolvency test or the employer resources test is met in relation to an act or failure,
the standard procedure must provide for the following matters.
(1B) The matters are—
(a) a requirement for the warning notice to explain the general effect of section 38B, 38D or 38F (as the case may be) and
(b) a requirement for the person to be given an opportunity before the contribution notice is issued to show the matters mentioned in section 38B(2), 38D(2) and (3) or 38F(2) (as the case may be).
(2) The “standard procedure” is a procedure which provides for—
(a) the giving of notice to such persons as it appears to the Regulator would be directly affected by the regulatory action under consideration (a “warning notice”),
(b) those persons to have an opportunity to make representations,
(c) the consideration of any such representations and the determination whether to take the regulatory action under consideration,
(d) the giving of notice of the determination to such persons as appear to the Regulator to be directly affected by it (a “determination notice”),
(e) the determination notice to contain details of the right of referral to the Tribunal under subsection (3),
(f) the form and further content of warning notices and determination notices and the manner in which they are to be given, and
(g) the time limits to be applied at any stage of the procedure.
(3) Where the standard procedure applies, the determination which is the subject-matter of the determination notice may be referred to the Tribunal ... by—
(a) any person to whom the determination notice is given as required under subsection (2)(d), and
(b) any other person who appears to the Tribunal to be directly affected by the determination.
(4) Subsection (3) does not apply where the determination which is the subject-matter of the determination notice is a determination to issue a clearance statement under section 42 or 46.
(5) Where the determination which is the subject-matter of the determination notice is a determination to exercise a regulatory function and subsection (3) applies, the Regulator must not exercise the function—
(a) during the period within which the determination may be referred to the Tribunal ..., and
(b) if the determination is so referred, until the reference, and any appeal against the Tribunal’s determination, has been finally disposed of.
(6) Subsection (5) does not apply where the determination is a determination to exercise any of the following functions—
(a) the power to make a direction under section 76(8) extending the retention period for documents taken into possession under section 75;
(b) the power to make a direction under section 78(10) extending the retention period for documents taken into possession under that section;
(c) the power to make an order under section 154(8);
(d) the power to make an order under section 219(4);
(e) the power to grant or revoke authorisation under section 288;
(f) the power to grant or revoke approval under section 289;
(g) the power to issue a notice under section 293(5);
(h) the power to make an order under section 3(1) of the Pensions Act 1995 (c. 26) prohibiting a person from being a trustee;
(i) the power to make an order under section 3(3) of that Act revoking such an order;
(ia) the power under section 3A(3) of that Act to give a notice waiving a prohibition;
(j) the power to make an order under section 4(1) of that Act suspending a trustee;
(k) the power to make an order under section 4(2) of that Act extending the period for which an order under section 4(1) of that Act has effect;
(l) the power to make an order under section 4(5) of that Act revoking an order under section 4(1) of that Act suspending a trustee;
(m) the power to make an order under section 7 of that Act appointing a trustee;
(n) the power under section 9 of that Act to exercise by order the same jurisdiction and powers as the High Court or the Court of Session for vesting property in, or transferring property to, trustees in consequence of the appointment or removal of a trustee;
(o) the power to make an order under section 23 of that Act appointing an independent trustee;
(p) the power under section 29(5) of that Act to give a notice waiving a disqualification under section 29 of that Act;
(q) the power under section 30(2) of that Act to exercise by order the same jurisdiction and powers as the High Court or the Court of Session for vesting property in, or transferring property to, the trustees where a trustee becomes disqualified under section 29 of that Act;
(r) the power to give directions under section 72B of that Act facilitating a winding up;
(s) the power by direction under section 99(4) of the Pension Schemes Act 1993 (c. 48) to grant an extension of the period within which the trustees or managers of a scheme are to carry out certain duties;
(t) the power by direction under section 101J(2) of that Act to extend the period for compliance with a transfer notice;
(u) such other regulatory functions as may be prescribed;
(v) the power under section 101(1)(b) to vary or revoke in relation to the exercise of any of the regulatory functions mentioned in paragraphs (a) to (u) other than those mentioned in paragraph (i) or (l).
(6A) Subsection (6B) applies in relation to a warning notice given to a person—
(a) in respect of a contribution notice under section 38, or
(b) in respect of a financial support direction under section 43.
(6B) Regulations may provide that no determination notice in respect of the contribution notice or the financial support direction may be given after the end of the prescribed period beginning with the day on which the warning notice is given.
(7) In this section “the Tribunal”, in relation to any reference under subsection (3), means—
(a) the First-tier Tribunal, in any case where it is determined by or under Tribunal Procedure Rules that the First-tier Tribunal is to hear the reference;
(b) the Upper Tribunal, in any other case.
(1) The special procedure in section 98 (and not the standard procedure) applies to—
(a) a case falling within subsection (2),
(b) a case falling within subsection (3), and
(c) a case falling within subsection (4).
(2) A case falls within this subsection if—
(a) the Regulator considers that it may be necessary to exercise a regulatory function listed in subsection (5) immediately because there is, or the Regulator considers it likely that if a warning notice were to be given there would be, an immediate risk to—
(i) the interests of members under an occupational or personal pension scheme, or
(ii) the assets of such a scheme,
(b) the Regulator accordingly dispenses with the giving of a warning notice and an opportunity to make representations as described in section 96(2)(a) and (b), and
(c) the Regulator determines to exercise the function immediately on the basis that it is necessary to do so because there is, or the Regulator considers it likely that if the function were not exercised immediately there would be, an immediate risk to—
(i) the interests of members under an occupational or personal pension scheme, or
(ii) the assets of such a scheme.
(3) A case falls within this subsection if—
(a) the Regulator gives a warning notice as described in section 96(2)(a) in relation to a determination whether to exercise a regulatory function listed in subsection (5), and
(b) before it has considered the representations of those persons to whom the warning notice is given, the Regulator determines to exercise the function immediately on the basis that it is necessary to do so because there is, or the Regulator considers it likely that if the function were not exercised immediately there would be, an immediate risk to—
(i) the interests of members under an occupational or personal pension scheme, or
(ii) the assets of such a scheme.
(4) A case falls within this subsection if the Regulator—
(a) gives a warning notice as described in section 96(2)(a) in relation to a determination whether to exercise a regulatory function which—
(i) is listed in subsection (5), and
(ii) is not a function listed in section 96(6) (functions which may be exercised immediately under the standard procedure),
(b) considers the representations of those persons to whom the warning notice is given, and
(c) determines to exercise the function immediately on the basis that it is necessary to do so because there is, or the Regulator considers it likely that if the function were not exercised immediately there would be, an immediate risk to—
(i) the interests of members under an occupational or personal pension scheme, or
(ii) the assets of such a scheme.
(5) The regulatory functions referred to in subsections (2), (3) and (4) are—
(a) the power to make or extend a restraining order under section 20;
(b) the power to make a freezing order under section 23;
(c) the power to make an order under section 25(3) extending the period for which a freezing order has effect;
(d) the power to make an order under section 26 validating action taken in contravention of a freezing order;
(e) the power to make an order under section 28 directing that specified steps are taken;
(f) the power to make an order under section 30 giving a direction where a freezing order ceases to have effect;
(g) the power to make an order under section 31(3) directing the notification of members;
(h) the power to make an order under section 231 modifying a scheme, giving directions or imposing a schedule of contributions;
(i) the power to make an order under section 3(1) of the Pensions Act 1995 (c. 26) prohibiting a person from being a trustee;
(j) the power to make an order under section 3(3) of that Act revoking such an order;
(ja) the power under section 3A(3) of that Act to give a notice waiving a prohibition;
(k) the power to make an order under section 4(1) of that Act suspending a trustee;
(l) the power to make an order under section 4(5) of that Act revoking such an order;
(m) the power to make an order under section 7 of that Act appointing a trustee;
(n) the power under section 9 of that Act to exercise by order the same jurisdiction and powers as the High Court or the Court of Session for vesting property in, or transferring property to, trustees in consequence of the appointment or removal of a trustee;
(o) the power to make an order under section 11 of that Act directing or authorising an occupational pension scheme to be wound up;
(p) the power to make an order under section 23 of that Act appointing an independent trustee;
(q) the power under section 29(5) of that Act to give a notice waiving a disqualification under section 29 of that Act;
(r) the power under section 30(2) of that Act to exercise by order the same jurisdiction and powers as the High Court or the Court of Session for vesting property in, or transferring property to, the trustees where a trustee becomes disqualified under section 29 of that Act;
(s) the power to make an order under section 67G(2) of that Act by virtue of which any modification of, or grant of rights under, an occupational pension scheme is void to any extent;
(t) the power to make an order under section 67H(2) of that Act prohibiting, or specifying steps to be taken in relation to, the exercise of a power to modify an occupational pension scheme;
(ta) a power under section 24H of the Pension Schemes Act 1993;
(tb) the power to withdraw authorisation of a Master Trust scheme under section 19 of the Pension Schemes Act 2017;
(tc) the power to make a pause order under section 31 of that Act;
(td) the power to make an order under paragraph 2(2) of Schedule 1 to that Act extending the period for which a pause order has effect;
(te) the power to make an order under paragraph 3 of that Schedule validating action taken in contravention of a pause order;
(tf) the power to make an order under paragraph 4(3) of that Schedule directing the notification of members or employers;
(tg) the power under section 30 of the Pension Schemes Act 2021 to withdraw authorisation of a collective money purchase scheme;
(th) the power to make a pause order under section 44 of that Act;
(ti) the power to make an order under paragraph 2(2) of Schedule 2 to that Act extending the period for which a pause order has effect;
(tj) the power to make an order under paragraph 3 of that Schedule validating action taken in contravention of a pause order;
(tk) the power to make an order under paragraph 4(3) of that Schedule directing the notification of members or employers;
(u) such other regulatory functions as may be prescribed;
(v) the power under section 101(1)(b) to vary or revoke in relation to the exercise of any of the regulatory functions mentioned in paragraphs (a) to (u) other than those mentioned in paragraph (j) or (l).
(1) The procedure determined under section 93 must make provision for the special procedure.
(2) The “special procedure” is a procedure which provides for—
(a) the giving of notice of the determination to exercise the regulatory function to such persons as appear to the Regulator to be directly affected by it (a “determination notice”),
(b) the determination notice to contain details of the requirement for the Regulator to review the determination under section 99(1) and of any subsequent right of referral to the Tribunal under section 99(7),
(c) the persons to whom the determination notice was given (as required under paragraph (a)) to have an opportunity to make representations in relation to the determination before it is reviewed under section 99(1),
(d) the consideration of any such representations before the determination on the review,
(e) the giving of a notice in accordance with section 99(4) of the determination on the review (a “final notice”),
(f) the final notice to contain details of the right of referral to the Tribunal under section 99(7),
(g) the form and further content of determination notices and final notices and the manner in which they are to be given, and
(h) the time limits to be applied at any stage of the procedure.
(1) In a case where the special procedure applies, the Regulator must review the determination to exercise the regulatory function.
(2) The review must be determined as soon as reasonably practicable.
(3) The Regulator’s powers on a review under this section include power to—
(a) confirm, vary or revoke the determination,
(b) confirm, vary or revoke any order, notice or direction made, issued or given as a result of the determination,
(c) substitute a different determination, order, notice or direction,
(d) deal with the matters arising on the review as if they had arisen on the original determination, and
(e) make savings and transitional provision.
(4) When the Regulator has completed a review under this section a notice of its determination on the review must be given to such persons as appear to it to be directly affected by its determination on the review.
(5) If the final notice contains a determination to exercise a different regulatory function to the function which was the subject-matter of the determination notice, then the final notice may not be given unless—
(a) such persons as appear to the Regulator to be directly affected by the exercise of the regulatory function have been given an opportunity to make representations, and
(b) the Regulator has considered any such representations before it makes its determination on the review.
(6) Subsection (5) does not apply if the regulatory function is listed in section 97(5) and the Regulator determines to exercise it immediately on the basis that it is necessary to do so because there is, or the Regulator considers it likely that if the function were not exercised immediately there would be, an immediate risk to—
(a) the interests of members under an occupational or personal pension scheme, or
(b) the assets of such a scheme.
(7) The determination which is the subject-matter of a final notice may be referred to the Tribunal ... by—
(a) any person to whom the final notice is given as required under subsection (4), and
(b) any other person who appears to the Tribunal to be directly affected by the determination.
(8) Where that determination is a determination to exercise a different regulatory function to the function which was the subject-matter of the determination notice, the Regulator must not exercise the regulatory function—
(a) during the period within which the determination may be referred to the Tribunal ..., and
(b) if the determination is so referred, until the reference, and any appeal against the Tribunal’s determination, has been finally disposed of.
(9) Subsection (8) does not apply where—
(a) the regulatory function in question is a function listed in section 96(6) (functions which may be exercised immediately under the standard procedure), or
(b) the regulatory function in question is a function listed in section 97(5) (functions which may be exercised immediately under the special procedure) and the Regulator determines to exercise it immediately on the basis described in subsection (6).
(10) The functions of the Regulator under this section are exercisable on behalf of the Regulator by the Determinations Panel (and are not otherwise exercisable by or on behalf of the Regulator).
(11) The Panel must determine the procedure that it proposes to follow in relation to the exercise of those functions.
(12) Section 94 (publication of Regulator’s procedure) applies in relation to the procedure determined under subsection (11) as it applies to the procedure determined under section 93 (procedure in relation to the regulatory functions).
(13) In this section “the Tribunal”, in relation to any reference under subsection (7), means—
(a) the First-tier Tribunal, in any case where it is determined by or under Tribunal Procedure Rules that the First-tier Tribunal is to hear the reference;
(b) the Upper Tribunal, in any other case.
100 Duty to have regard to the interests of members etc
(1) The Regulator must have regard to the matters mentioned in subsection (2)—
(a) when determining whether to exercise a regulatory function—
(i) in a case where the requirements of the standard or special procedure apply, or
(ii) on a review under section 99, and
(b) when exercising the regulatory function in question.
(2) Those matters are—
(a) the interests of the generality of the members of the scheme to which the exercise of the function relates, and
(b) the interests of such persons as appear to the Regulator to be directly affected by the exercise.
101 Powers to vary or revoke orders, notices or directions etc
(1) The Regulator may vary or revoke—
(a) any determination by the Regulator whether to exercise a regulatory function, or
(b) any order, notice or direction made, issued or given by the Regulator in the exercise of a regulatory function.
(2) Subsection (1)(b) does not apply to—
(a) an order under section 3(3) of the Pensions Act 1995 (c. 26) revoking a prohibition order under that section,
(b) an order under section 4(5) of that Act revoking a suspension order under that section,
(c) a direction under section 2(3) of the Welfare Reform and Pensions Act 1999 (c. 30) refusing to register a scheme under section 2 of that Act or removing a scheme from the register of stakeholder pension schemes, or
(d) such other orders, notices or directions made, issued or given by the Regulator, in the exercise of a regulatory function, as may be prescribed.
(3) A variation or revocation of an order, a notice or a direction must be made by an order, a notice or a direction (as the case may be).
(4) A variation or revocation made under this section must take effect from a specified time which must not be a time earlier than the time when the variation or revocation is made.
(5) The power to vary or revoke under this section—
(a) is not to be treated for the purposes of subsection (1) as a regulatory function, and
(b) is in addition to any such power which is conferred on the Regulator by, or by virtue of, this or any other enactment.
(1) This section applies in respect of proceedings before a tribunal in relation to a decision of the Regulator.
(2) A person is guilty of an offence if that person, without reasonable excuse, refuses or fails—
(a) to attend following the issue of a summons by the tribunal; or
(b) to give evidence.
(3) A person guilty of an offence under subsection (2) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(4) A person is guilty of an offence if that person, without reasonable excuse—
(a) alters, suppresses, conceals or destroys a document which that person is or is liable to be required to produce for the purposes of proceedings before the tribunal; or
(b) refuses to produce a document when so required.
(5) A person guilty of an offence under subsection (4) is liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.
(6) In this section “document” includes information recorded in any form and, in relation to information recorded otherwise than in a legible form, references to its production include references to producing a copy of the information in a legible form, or in a form from which it can readily be produced in a legible form.
103 References in relation to decisions of Regulator
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2A) This section applies to references to a tribunal in relation to a decision of the Regulator.
(3) On a reference, the tribunal concerned may consider any evidence relating to the subject-matter of the reference, whether or not it was available to the Regulator at the material time.
(4) On a reference, the tribunal concerned must determine what (if any) is the appropriate action for the Regulator to take in relation to the matter referred to it .
(5) On determining a reference, the tribunal concerned must remit the matter to the Regulator with such directions (if any) as it considers appropriate for giving effect to its determination.
(6) Those directions may include directions to the Regulator—
(a) confirming the Regulator’s determination and any order, notice or direction made, issued or given as a result of it;
(b) to vary or revoke the Regulator’s determination, and any order, notice or direction made, issued or given as a result of it;
(c) to substitute a different determination, order, notice or direction;
(d) to make such savings and transitional provision as the tribunal concerned considers appropriate.
(7) The Regulator must act in accordance with the determination of, and any direction given by, the tribunal concerned (and accordingly sections 96 to 99 (standard and special procedure) do not apply).
(8) The tribunal concerned may, on determining a reference, make recommendations as to the procedure followed by the Regulator or the Determinations Panel.
(9) An order of the tribunal concerned may be enforced—
(a) as if it were an order of the county court, or
(b) in Scotland, as if it were an order of the Court of Session.
(1) The Lord Chancellor may by regulations establish a scheme governing the provision of legal assistance in connection with proceedings before a tribunal in relation to a decision of the Regulator.
(2) The legal assistance scheme may, in particular, make provision as to—
(a) the kinds of legal assistance that may be provided;
(b) the persons by whom legal assistance may be provided;
(c) the manner in which applications for legal assistance are to be made;
(d) the criteria on which eligibility for legal assistance is to be determined;
(e) the persons or bodies by whom applications are to be determined;
(f) appeals against refusals of applications;
(g) the revocation or variation of decisions;
(h) its administration and the enforcement of its provisions.
(3) Legal assistance under the scheme may be provided subject to conditions or restrictions.
(4) Those conditions may include conditions as to the making of contributions by the person to whom the assistance is provided.
(5) The Lord Chancellor must fund, out of money provided by Parliament, the costs of the scheme including the costs of legal assistance provided under it.
(6) In this Part “the legal assistance scheme” means any scheme in force by virtue of subsection (1).
(1) The Board is to consist of the following members—
(a) a chairman,
(b) the Chief Executive of the Board, and
(c) at least five other persons (“ordinary members”).
(2) The chairman must not be appointed from the staff of the Board or be the chairman of the Regulator.
(3) The number of ordinary members must not exceed any maximum number which may be prescribed.
(4) At least two ordinary members must be appointed from the staff of the Board.
(5) No member of the Determinations Panel established by the Regulator under section 9, or member of the staff of the Regulator, is eligible for appointment as a member of the Board.
(6) Any power to appoint ordinary members must be exercised so as to secure that a majority of the members of the Board are non-executive members.
(7) In this Part—
(a) references to executive members of the Board are to—
(i) the Chief Executive, and
(ii) the ordinary members appointed from the staff of the Board, and
(b) references to non-executive members of the Board are to members who are not executive members.
Schedule 5 makes further provision about the Board, including provision as to—
the appointment of members,
the terms of appointment, tenure and remuneration of members,
the appointment of the Chief Executive and other staff,
the proceedings of the Board,
its accounts, and
the status and liability of the Board, its members and staff.
(1) The Board must hold, manage and apply, in accordance with this Part and any provision in force in Northern Ireland corresponding to it—
(a) a fund to be known as the Pension Protection Fund, and
(b) a fund to be known as the Fraud Compensation Fund.
(2) Sections 175 and 189 make provision for contributions to those funds to be levied by the Board.
(3) The Board also has such other functions as are conferred on it by, or by virtue of, this or any other enactment.
(1) The functions listed in subsection (4) (in this Part referred to as “the non-executive functions”) are functions of the Board.
(2) The Board must establish a committee to discharge the non-executive functions on its behalf.
(3) Only non-executive members of the Board may be members of that committee.
(4) The non-executive functions are—
(a) the duty to keep under review the question whether the Board’s internal financial controls secure the proper conduct of its financial affairs;
(b) the duty to determine under sub-paragraph (5)(a) of paragraph 12 of Schedule 5, subject to the approval of the Secretary of State, the terms and conditions as to remuneration of any Chief Executive appointed under sub-paragraph (4) of that paragraph;
(c) the duty to determine under paragraph 13(3)(a) of that Schedule, subject to the approval of the Secretary of State, the terms and conditions as to remuneration of any member of the staff who is also to be an executive member of the Board;
(d) the duty to determine under paragraph 13(3)(b) of that Schedule, the terms and conditions as to remuneration of any member of the staff of a description prescribed for the purposes of that provision.
(5) The committee established under this section must prepare a report on the discharge of the non-executive functions for inclusion in the Board’s annual report to the Secretary of State under section 119.
(6) The committee’s report must relate to the same period as that covered by the Board’s report.
(7) The members of any sub-committee of the committee (established by virtue of paragraph 15(2) of Schedule 5)—
(a) may include persons who are not members of the committee, but
(b) must not include persons who are executive members or other staff of the Board.
(8) The committee may authorise any of its sub-committees to discharge on its behalf—
(a) any of the non-executive functions;
(b) the duty to prepare a report under subsection (5).
(1) The Board may invest for the purposes of the prudent management of its financial affairs.
(2) When exercising the power conferred by subsection (1) in relation to the Pension Protection Fund, the Board must have regard to—
(a) the interests of persons who are or may become entitled to compensation under the pension compensation provisions (see section 162) or any corresponding provisions in force in Northern Ireland, and
(b) the effect of the exercise of the power on the rate of any levy which may be imposed under section ... 175 or any corresponding provision in force in Northern Ireland and the interests which persons have in the rate of any such levy.
(3) When exercising the power conferred by subsection (1) in relation to the Fraud Compensation Fund, the Board must have regard to—
(a) the interests of members of occupational pension schemes in relation to which section 189(1), or any corresponding provision in force in Northern Ireland, applies, and
(b) the effect of the exercise of the power on the level of any levy which may be imposed under section 189 or any corresponding provision in force in Northern Ireland and the interests which persons have in the rate of any such levy.
(4) For the purposes of subsection (1) there must be at least two fund managers.
(5) For this purpose “fund manager” means an individual who or firm which is appointed by the Board to manage the fund maintained under section 173 (the Pension Protection Fund).
(6) The Board must not appoint an individual or firm as a fund manager unless it is satisfied—
(a) in the case of an individual, that the individual has the appropriate knowledge and experience for managing the investments of the Pension Protection Fund, or
(b) in the case of a firm, that arrangements are in place to secure that any individual who will exercise functions which the firm has as fund manager will, at the time he exercises those functions, have the appropriate knowledge and experience for managing the investments of that Fund.
(1) The Board must secure—
(a) that a statement of investment principles is prepared and maintained, and
(b) that the statement is reviewed at such intervals, and on such occasions, as may be prescribed and, if necessary, revised.
(2) In this section “statement of investment principles” means a written statement of the investment principles governing determinations about investments made by or on behalf of the Board.
(3) Before preparing or revising a statement of investment principles, the Board must comply with any prescribed requirements.
(4) A statement of investment principles must be in the prescribed form and cover, amongst other things, the prescribed matters.
(1) The Board may—
(a) borrow from a deposit-taker such sums as it may from time to time require for exercising any of its functions;
(b) give security for any money borrowed by it.
(2) The Board may not borrow under this section if the effect would be—
(a) to take the aggregate amount outstanding in respect of the principal of sums borrowed by it under this section over its borrowing limit, or
(b) to increase the amount by which the aggregate amount so outstanding exceeds that limit.
(3) In this section—
“borrowing limit” means such limit as the Secretary of State may specify by order;
“deposit-taker” means—
a person who has permission under Part 4A of the Financial Services and Markets Act 2000 (c. 8) to accept deposits, ...
...
(4) The definition of “deposit-taker” in subsection (3) must be read with—
(a) section 22 of the Financial Services and Markets Act 2000,
(b) any relevant order under that section, and
(c) Schedule 2 to that Act.
(1) The Secretary of State may lend money to the Board for the purposes of the exercise of the Board’s functions under Chapter 4 of this Part and any corresponding provision in force in Northern Ireland.
(2) A loan under this section may be made on such terms (including as to repayment and interest) as the Secretary of State may determine.
(1) The Board must prepare a report for each financial year.
(2) Each report—
(a) must deal with the activities of the Board in the financial year for which it is prepared, including the matters mentioned in subsection (3), and
(b) must include the report prepared under subsection (5) of section 112 by the committee established under that section.
(3) The matters referred to in subsection (2)(a) are—
(a) the strategic direction of the Board and the manner in which it has been kept under review;
(b) the steps taken to scrutinise the performance of the Chief Executive in securing that the Board’s functions are exercised efficiently and effectively;
(c) the Board’s objectives and targets and the steps taken to monitor the extent to which they are being met.
(4) The Board must send each report to the Secretary of State as soon as practicable after the end of the financial year for which it is prepared.
(5) The Secretary of State must lay before each House of Parliament a copy of every report received by him under this section.
(6) In this section “financial year” means—
(a) the period beginning with the date on which the Board is established and ending with the next following 31st March, and
(b) each successive period of 12 months.
120 Duty to notify insolvency events in respect of employers
(1) This section applies where, in the case of an occupational pension scheme, an insolvency event occurs in relation to the employer.
(2) The insolvency practitioner in relation to the employer must give a notice to that effect within the notification period to—
(a) the Board,
(b) the Regulator, and
(c) the trustees or managers of the scheme.
(3) For the purposes of subsection (2) the “notification period” is the prescribed period beginning with the later of—
(a) the insolvency date, and
(b) the date the insolvency practitioner becomes aware of the existence of the scheme.
(4) A notice under this section must be in such form and contain such information as may be prescribed.
121 Insolvency event, insolvency date and insolvency practitioner
(1) In this Part each of the following expressions has the meaning given to it by this section—
“insolvency event”
“insolvency date”
“insolvency practitioner”.
(2) An insolvency event occurs in relation to an individual where—
(a) he is made bankrupt or sequestration of his estate has been awarded;
(b) the nominee in relation to a proposal for a voluntary arrangement under Part 8 of the Insolvency Act 1986 (c. 45) submits a report to the court under section 256(1) or 256A(3) of that Act which states that in his opinion the individual’s creditors should consider the debtor’s proposal;
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) he executes a trust deed for his creditors or enters into a composition contract;
(e) he has died and—
(i) an insolvency administration order is made in respect of his estate in accordance with an order under section 421 of the Insolvency Act 1986, or
(ii) a judicial factor appointed under section 11A of the Judicial Factors (Scotland) Act 1889 (c. 39) is required by that section to divide the individual’s estate among his creditors.
(3) An insolvency event occurs in relation to a company where—
(a) the nominee in relation to a proposal for a voluntary arrangement under Part 1 of the Insolvency Act 1986 submits a report to the court under section 2 of that Act (procedure where nominee is not the liquidator or administrator) which states that in his opinion the proposal should be considered by a meeting of the company and by the company’s creditors;
(b) the directors of the company file (or in Scotland lodge) with the court documents and statements in accordance with paragraph 7(1) of Schedule A1 to that Act (moratorium where directors propose voluntary arrangement);
(c) an administrative receiver within the meaning of section 251 of that Act is appointed in relation to the company;
(d) the company enters administration within the meaning of paragraph 1(2)(b) of Schedule B1 to that Act;
(e) a resolution is passed for a voluntary winding up of the company without a declaration of solvency under section 89 of that Act;
(f) a winding up becomes a creditors’ voluntary winding up under section 96 of that Act (conversion to creditors’ voluntary winding up);
(g) an order for the winding up of the company is made by the court under Part 4 or 5 of that Act.
(4) An insolvency event occurs in relation to a partnership where—
(a) an order for the winding up of the partnership is made by the court under any provision of the Insolvency Act 1986 (c. 45) (as applied by an order under section 420 of that Act (insolvent partnerships));
(b) sequestration is awarded on the estate of the partnership under section 22 of the Bankruptcy (Scotland) Act 2016 or the partnership grants a trust deed for its creditors;
(c) the nominee in relation to a proposal for a voluntary arrangement under Part 1 of the Insolvency Act 1986 (as applied by an order under section 420 of that Act) submits a report to the court under section 2 of that Act (procedure where nominee is not the liquidator or administrator) which states that in his opinion the proposal should be considered by a meeting of the members of the partnership and by the partnership’s creditors;
(d) the members of the partnership file with the court documents and statements in accordance with paragraph 7(1) of Schedule A1 to that Act (moratorium where directors propose voluntary arrangement) (as applied by an order under section 420 of that Act);
(e) the partnership enters administration within the meaning of paragraph 1(2)(b) of Schedule B1 to that Act (as applied by an order under section 420 of that Act).
(5) An insolvency event also occurs in relation to a person where an event occurs which is a prescribed event in relation to such a person.
(6) Except as provided by subsections (2) to (5), for the purposes of this Part an event is not to be regarded as an insolvency event in relation to a person.
(7) The Secretary of State may by order amend subsection (4)(e) to make provision consequential upon any order under section 420 of the Insolvency Act 1986 (insolvent partnerships) applying the provisions of Part 2 of that Act (administration) as amended by the Enterprise Act 2002 (c. 40).
(8) “Insolvency date”, in relation to an insolvency event, means the date on which the event occurs.
(9) “Insolvency practitioner”, in relation to a person, means—
(a) a person acting as an insolvency practitioner, in relation to that person, in accordance with section 388 of the Insolvency Act 1986;
(b) in such circumstances as may be prescribed, a person of a prescribed description.
(10) In this section—
“company” means a company as defined in section 1(1) of the Companies Act 2006 or a company which may be wound up under Part 5 of the Insolvency Act 1986 (c. 45) (unregistered companies);
“person acting as an insolvency practitioner”, in relation to a person, includes the official receiver acting as receiver or manager of any property of that person.
(11) In applying section 388 of the Insolvency Act 1986 under subsection (9) above—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) section 388(5) (which includes provision that nothing in the section applies to anything done by the official receiver or the Accountant in Bankruptcy) must be ignored.
122 Insolvency practitioner’s duty to issue notices confirming status of scheme
(1) This section applies where an insolvency event has occurred in relation to the employer in relation to an occupational pension scheme.
(2) An insolvency practitioner in relation to the employer must—
(a) if he is able to confirm that a scheme rescue is not possible, issue a notice to that effect (a “scheme failure notice”), or
(b) if he is able to confirm that a scheme rescue has occurred, issue a notice to that effect (a “withdrawal notice”).
(3) Subsection (4) applies where—
(a) in prescribed circumstances, insolvency proceedings in relation to the employer are stayed or come to an end, or
(b) a prescribed event occurs.
(4) If a person who was acting as an insolvency practitioner in relation to the employer immediately before this subsection applies has not been able to confirm in relation to the scheme—
(a) that a scheme rescue is not possible, or
(b) that a scheme rescue has occurred,
he must issue a notice to that effect.
(5) For the purposes of this section—
(a) a person is able to confirm that a scheme rescue has occurred in relation to an occupational pension scheme if, and only if, he is able to confirm such matters as are prescribed for the purposes of this paragraph, and
(b) a person is able to confirm that a scheme rescue is not possible, in relation to such a scheme if, and only if, he is able to confirm such matters as are prescribed for the purposes of this paragraph.
(6) Where an insolvency practitioner or former insolvency practitioner in relation to the employer issues a notice under this section, he must give a copy of that notice to—
(a) the Board,
(b) the Regulator, and
(c) the trustees or managers of the scheme.
(7) A person must comply with an obligation imposed on him by subsection (2), (4) or (6) as soon as reasonably practicable.
(8) Regulations may require notices issued under this section—
(a) to be in a prescribed form;
(b) to contain prescribed information.
(1) This section applies where the Board receives a notice under section 122(6) (“the section 122 notice”).
(2) The Board must determine whether to approve the section 122 notice.
(3) The Board must approve the section 122 notice if, and only if, it is satisfied—
(a) that the insolvency practitioner or former insolvency practitioner who issued the notice was required to issue it under that section, and
(b) that the notice complies with any requirements imposed by virtue of subsection (8) of that section.
(4) Where the Board makes a determination for the purposes of subsection (2), it must issue a determination notice and give a copy of that notice to—
(a) the Regulator,
(b) the trustees or managers of the scheme,
(c) the insolvency practitioner or the former insolvency practitioner who issued the section 122 notice,
(d) any insolvency practitioner in relation to the employer (who does not fall within paragraph (c)), and
(e) if there is no insolvency practitioner in relation to the employer, the employer.
(5) In subsection (4) “determination notice” means a notice which is in the prescribed form and contains such information about the determination as may be prescribed.
124 Board’s duty where there is a failure to comply with section 122
(1) This section applies where in relation to an occupational pension scheme—
(a) the Board determines under section 123 not to approve a notice issued under section 122 by an insolvency practitioner or former insolvency practitioner in relation to the employer, or
(b) an insolvency practitioner or former insolvency practitioner in relation to the employer fails to issue a notice under section 122 and the Board is satisfied that such a notice ought to have been issued under that section.
(2) The obligations on the insolvency practitioner or former insolvency practitioner imposed by subsections (2) and (4) of section 122 are to be treated as obligations imposed on the Board and the Board must accordingly issue a notice as required under that section.
(3) Subject to subsections (4) and (5), where a notice is issued under section 122 by the Board by virtue of this section, it has effect as if it were a notice issued under section 122 by an insolvency practitioner or, as the case may be, former insolvency practitioner in relation to the employer.
(4) Where a notice is issued under section 122 by virtue of this section, section 122(6) does not apply and the Board must, as soon as reasonably practicable, give a copy of the notice to—
(a) the Regulator,
(b) the trustees or managers of the scheme,
(c) the insolvency practitioner or former insolvency practitioner mentioned in subsection (1),
(d) any insolvency practitioner in relation to the employer (who does not fall within paragraph (c)), and
(e) if there is no insolvency practitioner in relation to the employer, the employer.
(5) Where the Board—
(a) is required to issue a notice under section 122 by virtue of this section, and
(b) is satisfied that the notice ought to have been issued at an earlier time,
it must specify that time in the notice and the notice is to have effect as if it had been issued at that time.
(1) Subject to subsection (2), for the purposes of this Part, a notice issued under section 122 is not binding until—
(a) the Board issues a determination notice under section 123 approving the notice,
(b) the period within which the issue of the determination notice under that section may be reviewed by virtue of Chapter 6 has expired, and
(c) if the issue of the determination notice is so reviewed—
(i) the review and any reconsideration,
(ii) any reference to the PPF Ombudsman in respect of the issue of the notice, and
(iii) any appeal against his determination or directions,
has been finally disposed of and the determination notice has not been revoked, varied or substituted.
(2) Where a notice is issued under section 122 by the Board by virtue of section 124, the notice is not binding until—
(a) the period within which the issue of the notice may be reviewed by virtue of Chapter 6 has expired, and
(b) if the issue of the notice is so reviewed—
(i) the review and any reconsideration,
(ii) any reference to the PPF Ombudsman in respect of the issue of the notice, and
(iii) any appeal against his determination or directions,
has been finally disposed of and the notice has not been revoked, varied or substituted.
(3) Where a notice issued under section 122 becomes binding, the Board must as soon as reasonably practicable give a notice to that effect together with a copy of the binding notice to—
(a) the Regulator,
(b) the trustees or managers of the scheme,
(c) the insolvency practitioner or former insolvency practitioner who issued the notice under section 122 or, where that notice was issued by the Board by virtue of section 124, the insolvency practitioner or former insolvency practitioner mentioned in subsection (1) of that section,
(d) any insolvency practitioner in relation to the employer (who does not fall within paragraph (c)), and
(e) if there is no insolvency practitioner in relation to the employer, the employer.
(4) A notice under subsection (3)—
(a) must be in the prescribed form and contain such information as may be prescribed, and
(b) where it is given in relation to a withdrawal notice issued under section 122(2)(b) which has become binding, must state the time from which the Board ceases to be involved with the scheme (see section 149).
(1) Subject to the following provisions of this section, in this Part references to an “eligible scheme” are to an occupational pension scheme which—
(a) is not a money purchase scheme, and
(b) is not a prescribed scheme or a scheme of a prescribed description.
(1A) Where a scheme is divided into sections, each section that is a collective money purchase scheme for the purposes of Part 1 of the Pension Schemes Act 2021 (see section 1(2)(b) of that Act) is to be treated for the purposes of this Part as a separate money purchase scheme.
(2) A scheme is not an eligible scheme if it is being wound up immediately before the day appointed by the Secretary of State by order for the purposes of this subsection.
(3) Regulations may provide that where—
(a) an assessment period begins in relation to an eligible scheme (see section 132), and
(b) after the beginning of that period, the scheme ceases to be an eligible scheme,
the scheme is, in such circumstances as may be prescribed, to be treated as remaining an eligible scheme for the purposes of such of the provisions mentioned in subsection (4) as may be prescribed.
(4) Those provisions are—
(a) any provision of this Part, and
(b) any other provision of this Act in which “eligible scheme” has the meaning given by this section.
(5) Regulations may also provide that a scheme which would be an eligible scheme in the absence of this subsection is not an eligible scheme in such circumstances as may be prescribed.
127 Duty to assume responsibility for schemes following insolvency event
(1) This section applies where a qualifying insolvency event has occurred in relation to the employer in relation to an eligible scheme.
(2) The Board must assume responsibility for the scheme in accordance with this Chapter if—
(a) the value of the assets of the scheme at the relevant time was less than the amount of the protected liabilities at that time (see sections 131 and 143),
(b) after the relevant time a scheme failure notice is issued under section 122(2)(a) in relation to the scheme and that notice becomes binding, and
(c) a withdrawal event has not occurred in relation to the scheme in respect of a withdrawal notice which has been issued during the period—
(i) beginning with the occurrence of the qualifying insolvency event, and
(ii) ending immediately before the issuing of the scheme failure notice under section 122(2)(a),
and the occurrence of such a withdrawal event in respect of a withdrawal notice issued during that period is not a possibility (see section 149).
(3) For the purposes of this section, in relation to an eligible scheme an insolvency event (“the current event”) in relation to the employer is a qualifying insolvency event if—
(a) it occurs on or after the day appointed under section 126(2), and
(b) it—
(i) is the first insolvency event to occur in relation to the employer on or after that day, or
(ii) does not occur within an assessment period (see section 132) in relation to the scheme which began before the occurrence of the current event.
(4) For the purposes of this section—
(a) the reference in subsection (2)(a) to the assets of the scheme is a reference to those assets excluding any assets representing the value of any rights in respect of money purchase benefits under the scheme rules, and
(b) “the relevant time” means the time immediately before the qualifying insolvency event occurs.
(5) This section is subject to sections 146 and 147 (cases where Board must refuse to assume responsibility for a scheme).
128 Duty to assume responsibility for schemes following application or notification
(1) This section applies where, in relation to an eligible scheme, the trustees or managers of the scheme—
(a) make an application under subsection (1) of section 129 (a “section 129 application”), or
(b) receive a notice from the Board under subsection (5)(a) of that section (a “section 129 notification”).
(2) The Board must assume responsibility for the scheme in accordance with this Chapter if—
(a) the value of the assets of the scheme at the relevant time was less than the amount of the protected liabilities at that time (see sections 131 and 143),
(b) after the relevant time the Board issues a scheme failure notice under section 130(2) in relation to the scheme and that notice becomes binding, and
(c) a withdrawal event has not occurred in relation to the scheme in respect of a withdrawal notice which has been issued during the period—
(i) beginning with the making of the section 129 application or, as the case may be, the receipt of the section 129 notification, and
(ii) ending immediately before the issuing of the scheme failure notice under section 130(2),
and the occurrence of such a withdrawal event in respect of a withdrawal notice issued during that period is not a possibility (see section 149).
(3) In subsection (2)—
(a) the reference in paragraph (a) to the assets of the scheme is a reference to those assets excluding any assets representing the value of any rights in respect of money purchase benefits under the scheme rules, and
(b) “the relevant time” means the time immediately before the section 129 application was made or, as the case may be, the section 129 notification was received.
(4) An application under section 129(1) or notification under section 129(5)(a) is to be disregarded for the purposes of subsection (1) if it is made or given during an assessment period (see section 132) in relation to the scheme which began before the application was made or notification was given.
(5) This section is subject to sections 146 and 147 (cases where Board must refuse to assume responsibility for a scheme).
129 Applications and notifications for the purposes of section 128
(1) Where the trustees or managers of an eligible scheme become aware that—
(a) the employer in relation to the scheme is unlikely to continue as a going concern, and
(b) the prescribed requirements are met in relation to the employer,
they must make an application to the Board for it to assume responsibility for the scheme under section 128.
(2) Where the Board receives an application under subsection (1), it must give a copy of the application to—
(a) the Regulator, and
(b) the employer.
(3) An application under subsection (1) must—
(a) be in the prescribed form and contain the prescribed information, and
(b) be made within the prescribed period.
(4) Where the Regulator becomes aware that—
(a) the employer in relation to an eligible scheme is unlikely to continue as a going concern, and
(b) the requirements mentioned in subsection (1)(b) are met in relation to the employer,
it must give the Board a notice to that effect.
(5) Where the Board receives a notice under subsection (4), it must—
(a) give the trustees or managers of the scheme a notice to that effect, and
(b) give the employer a copy of that notice.
(6) The duty imposed by subsection (1) does not apply where the trustees or managers of an eligible scheme become aware as mentioned in that subsection by reason of a notice given to them under subsection (5).
(7) The duty imposed by subsection (4) does not apply where the Regulator becomes aware as mentioned in that subsection by reason of a copy of an application made by the trustees or managers of the eligible scheme in question given to the Regulator under subsection (2).
(8) Regulations may require notices under this section to be in the prescribed form and contain the prescribed information.