(1) This section applies for the purposes of enabling the Pensions Regulator to decide whether it is satisfied that a collective money purchase scheme has an adequate continuity strategy (see section 60(3)(f)).
(2) A document addressing how the interests of members of the scheme are to be protected if a triggering event (see section 82) occurs in relation to the scheme (a “continuity strategy”) must be prepared by—
(a) where the scheme is a single or connected employer scheme, the trustees of the scheme;
(b) where the scheme is an unconnected multiple employer scheme, the scheme proprietor.
(3) A continuity strategy must include a section setting out the levels of administration charges that apply in relation to members of the scheme.
(4) It must set out those levels of charges in the manner specified in regulations made by the Department.
(5) A continuity strategy must—
(a) contain such other information as may be specified in regulations made by the Department, and
(b) be prepared in accordance with regulations made by the Department.
(6) The trustees of a single or connected employer scheme must—
(a) keep the continuity strategy under review, and
(b) revise it if appropriate.
(6A) The scheme proprietor of an unconnected multiple employer scheme must—
(a) keep the continuity strategy under review, and
(b) revise it if appropriate.
(6B) The continuity strategy of an unconnected multiple employer scheme, and any revisions to it, must be approved by the trustees of the scheme.
(7) The continuity strategy must be provided to the Pensions Regulator in accordance with subsection (7A)—
(a) where the scheme is a single or connected employer scheme, by the trustees;
(b) where the scheme is an unconnected multiple employer scheme, by the scheme proprietor.
(7A) The continuity strategy must be provided—
(a) on application for authorisation (see section 59),
(b) within three months of the continuity strategy being revised, and
(c) at any other time, on request from the Pensions Regulator.
(8) In deciding whether a continuity strategy is adequate, the Pensions Regulator must take into account any matters specified in regulations made by the Department.
(9) Regulations under subsection (8) may include provision requiring specified information to be provided to the Pensions Regulator.
(10) Regulations under this section are subject to confirmatory procedure.
(1) This section applies for the purposes of enabling the Pensions Regulator to decide whether it is satisfied that, unless required to pursue continuity option 1 by virtue of section 85(3), the trustees of an unconnected multiple employer scheme would not be prevented from pursuing continuity option 3 whenever they consider it appropriate to do so, should a triggering event occur in relation to the scheme (see section 60(3)(g)).
(2) In deciding whether it is satisfied that the trustees of the scheme would not be so prevented, the Pensions Regulator must take into account whether there would be any constraints or fetters on the trustees when deciding whether to pursue continuity option 3, should a triggering event occur.
(3) For the purposes of subsection (2) the circumstances in which there would be a constraint or fetter on the trustees when deciding whether to pursue continuity option 3 include where, before making the decision, the trustees would be required to—
(a) obtain the consent of employers, the scheme proprietor, members of the scheme, or any other person, or
(b) consult with any person other than employers, the scheme proprietor and members of the scheme.
(1) A collective money purchase scheme must have rules about how the rate or amount of benefits provided under the scheme is to be determined.
(2) The rules must include—
(a) rules for determining the available assets of the scheme and their value,
(b) rules for determining the required amount, and
(c) rules about how the rate or amount of benefits provided under the scheme is to be adjusted from time to time, including rules about when adjustments are to take effect.
(3) In this section “the available assets of the scheme” and “the required amount” have the meaning given in section 53(2).
(4) The Department may by regulations make provision about the matters mentioned in subsections (1) and (2), including provision about the methods and assumptions to be used.
(5) Regulations under subsection (4) making provision about the determination of the required amount may, among other things, make provision about—
(a) how past or proposed adjustments to the rate or amount of benefits provided under the scheme are to be treated;
(b) assumptions to be made about future adjustments to the rate or amount of such benefits.
(6) Regulations under subsection (4) may, among other things—
(a) provide for alternative methods and assumptions;
(b) require or enable the trustees to decide which methods and assumptions are to be used;
(c) specify matters that the trustees must take into account, or principles they must follow, in making such decisions.
(7) Regulations under subsection (4)—
(a) may make provision applying in relation to rights under the scheme that have already accrued;
(b) override the rules of the scheme to the extent that the rules conflict with the regulations.
(8) Regulations under subsection (4) are subject to confirmatory procedure.
(1) The trustees of a collective money purchase scheme must obtain the advice of the scheme actuary before making a decision as to the methods and assumptions to be used in determining the matters mentioned in section 69(1) and (2).
(2) The Department may by regulations specify requirements with which the scheme actuary must comply when advising the trustees in accordance with subsection (1).
(3) Regulations under subsection (2) may, among other things, require the scheme actuary to have regard to guidance that is prepared, and from time to time revised, by a person specified or described in the regulations.
(4) Article 10 of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (civil penalties) applies to a trustee who fails to take all reasonable steps to comply with subsection (1).
(5) The first regulations under subsection (2) are subject to confirmatory procedure.
(6) Subsequent regulations under subsection (2) are subject to negative resolution.
(1) The trustees of a collective money purchase scheme must obtain actuarial valuations in accordance with this section and regulations under subsection (5).
(2) In this Part “actuarial valuation” means a report prepared and signed by the scheme actuary setting out—
(a) the available assets of the scheme and their value;
(b) the required amount;
(c) whether an adjustment to the rate or amount of benefits provided under the scheme is required and, if so, the amount of the adjustment.
(3) In this section “the available assets of the scheme” and “the required amount” have the meaning given in section 53(2).
(4) A scheme actuary preparing an actuarial valuation in pursuance of a provision of this Part must determine the matters mentioned in subsection (2) in accordance with the scheme rules.
(5) The Department may by regulations make provision about actuarial valuations, including—
(a) provision about when actuarial valuations must be prepared;
(b) provision about the date by reference to which a determination must be made;
(c) provision about information and statements that an actuarial valuation must contain;
(d) provision requiring the trustees to obtain an actuarial valuation from the scheme actuary within a period specified or described in the regulations;
(e) provision requiring the trustees to send an actuarial valuation received by them to the Pensions Regulator within a period specified or described in the regulations.
(6) In a case that is not the subject of regulations under subsection (5)(a), the trustees must obtain—
(a) an actuarial valuation in which the date by reference to which the available assets of the scheme are determined (“the effective date”) falls within the period of one year beginning with the day on which the scheme was established, and
(b) subsequent actuarial valuations in which the effective date is not more than one year after the effective date of the previous actuarial valuation.
(7) In a case that is not the subject of regulations under subsection (5)(b), the required amount must be determined by reference to the effective date.
(8) Article 10 of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (civil penalties) applies to a trustee who fails to take all reasonable steps to comply with this section.
(9) Nothing in this section affects a power or duty of the trustees of a collective money purchase scheme to obtain actuarial valuations on other occasions.
(10) The first regulations under subsection (5) are subject to confirmatory procedure.
(11) Subsequent regulations under subsection (5) are subject to negative resolution.
72 Certificate that actuarial valuation prepared in accordance with scheme rules
A scheme actuary who prepares an actuarial valuation in pursuance of a provision of this Part must certify that the matters mentioned in section 71(2) have been determined in accordance with the scheme rules.
(1) This section applies where an adjustment to the rate or amount of benefits provided under a collective money purchase scheme is required in accordance with the scheme rules.
(2) The trustees must as soon as is reasonably practicable report in writing to the Pensions Regulator if the adjustment—
(a) is not made in accordance with the most recent actuarial valuation, or
(b) does not take effect in accordance with the scheme rules.
(3) A report under subsection (2) must—
(a) explain why the adjustment was not made in accordance with the most recent actuarial valuation or (as the case may be) does not take effect in accordance with the scheme rules;
(b) contain such other information as the Department may specify in regulations.
(4) Article 10 of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (civil penalties) applies to a trustee who fails to take all reasonable steps to comply with this section.
(5) Regulations under subsection (3)(b) are subject to negative resolution.
(1) The powers conferred by this section are exercisable where it appears to the Pensions Regulator (as a result of a report made to it or otherwise) that the trustees of a collective money purchase scheme have without good reason—
(a) failed to comply with a requirement imposed by or under this Part to obtain an actuarial valuation, or
(b) failed to secure that any adjustment to the rate or amount of benefits provided under the scheme which is required in accordance with the scheme rules—
(i) is made in accordance with the most recent actuarial valuation, and
(ii) takes effect in accordance with the scheme rules.
(2) The Pensions Regulator may direct the trustees—
(a) to obtain an actuarial valuation;
(b) to take such other steps as the Pensions Regulator considers appropriate to remedy or mitigate the failure.
(3) A direction under subsection (2)(a) must—
(a) specify the period within which the valuation is to be obtained;
(b) specify the date by reference to which the matters to be set out in the actuarial valuation are to be determined;
(c) contain such other information as the Department may specify in regulations.
(4) In exercising a power conferred by this section, the Pensions Regulator must comply with any requirements specified in regulations made by the Department.
(5) Article 10 of the Pensions (Northern Ireland) Order 1995 (civil penalties) applies to a trustee who fails to take all reasonable steps to comply with a direction under this section.
(6) Regulations under this section are subject to negative resolution.
(7) The powers conferred by this section are in addition to any powers exercisable by the Pensions Regulator under any other statutory provision.
(1) The Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) is amended as follows.
(2) In Article 67 (the subsisting rights provisions)—
(a) after paragraph (1) insert—
(1A) Any exercise of such a power to make a prohibited modification is void.
;
(b) in paragraph (2)(a)(i), after “if the modification is a protected modification,” insert “ or the scheme is a collective money purchase scheme within the meaning of Part 2 of the Pension Schemes Act 2021, ”;
(c) in paragraph (2)(a)(ii), for “if it is not” substitute “ if head (i) does not apply ”;
(d) in paragraph (3) omit sub-paragraph (b) and the “or” before it;
(e) after paragraph (3) insert—
(3A) Regulations may provide for cases in which the subsisting rights provisions do not apply.
(3) In Article 67A (the subsisting rights provisions: interpretation), in paragraph (1), before “ “regulated modification”” insert—
“prohibited modification”
.
(4) After paragraph (1) of that Article insert—
(1A) “Prohibited modification” means a modification of an occupational pension scheme which on taking effect would or might result in any subsisting right of—
(a) a member of the scheme, or
(b) a survivor of a member of the scheme,
which is not a right or entitlement to money purchase benefits becoming, or being replaced with, a right or entitlement to collective money purchase benefits under the scheme rules.
(5) In paragraph (3) of that Article—
(a) after “a modification” insert “ , other than a prohibited modification, ”;
(b) for sub-paragraph (a) substitute—
(a) on taking effect would or might result in a relevant transformation of any subsisting right of a member of the scheme or a survivor of a member of the scheme (see paragraph (3A)),
;
(c) in sub-paragraph (b), after “rules” insert “ , other than a pension that is a collective money purchase benefit ”;
(d) omit the words following sub-paragraph (c).
(6) After paragraph (3) of that Article insert—
(3A) For the purposes of paragraph (3)(a), there is a relevant transformation of a subsisting right where—
(a) a subsisting right that is not a right or entitlement to money purchase benefits becomes, or is replaced with, a right or entitlement to money purchase benefits under the scheme rules,
(b) a subsisting right that is a right or entitlement to money purchase benefits other than collective money purchase benefits becomes, or is replaced with, a right or entitlement to collective money purchase benefits under the scheme rules, or
(c) a subsisting right that is a right or entitlement to collective money purchase benefits becomes, or is replaced with, a right or entitlement to money purchase benefits other than collective money purchase benefits under the scheme rules.
(3B) For the purposes of paragraph (3A), the reference in the definition of “money purchase benefits” in section 176(1) of the Pension Schemes Act to the widow, widower or surviving civil partner of a member of an occupational pension scheme is to be read as including any other survivor of the member.
(7) In paragraph (4) of that Article, after “a modification” insert “ , other than a prohibited modification, ”.
(8) In paragraph (9) of that Article—
(a) in sub-paragraph (a), after head (ix) insert—
(x) regulations made under section 69(4) of or paragraph 1(6) of Schedule 5 to the Pension Schemes Act 2021;
(xi) sections 85, 90, 92, 93 and 96 of the Pension Schemes Act 2021;
;
(b) in sub-paragraph (b), after head (vii) insert—
(viii) sections 69(7)(b), 85(5), 90(6), 92(6), 93(2) and 96(5) of and paragraph 1(7) of Schedule 5 to the Pension Schemes Act 2021.
(1) Chapter 1 of Part 4ZA of the Pension Schemes (Northern Ireland) Act 1993 (transfer rights: general) is amended as follows.
(2) In section 89 (scope of Chapter 1)—
(a) in subsection (7) (crystallisation events), in paragraph (b), after “money purchase benefits” insert “ other than collective money purchase benefits ”;
(b) after subsection (10) insert—
(10A) Where a pension scheme is divided into sections, each section that is a collective money purchase scheme for the purposes of Part 2 of the Pension Schemes Act 2021 (see section 52(2)(b) of that Act) is to be treated as a separate scheme for the purposes of this Chapter.
(3) In section 93 (calculation of cash equivalents), after subsection (3) insert—
(3ZA) Where, in the case of an application from a member under section 91 that relates to money purchase benefits that are collective money purchase benefits, regulations under section 95(2)(c) provide for a period longer than 6 months, subsection (3)(b) is to be read as if the reference to 6 months were a reference to that longer period.
(4) In section 95 (trustees' duties after exercise of option), in subsection (2) (period in which to carry out what the member requires)—
(a) omit the “and” at the end of paragraph (a);
(b) in paragraph (b), after “money purchase benefits” insert “ other than collective money purchase benefits ”;
(c) at the end of paragraph (b) insert
, and
(c) in the case of an application which relates to money purchase benefits that are collective money purchase benefits, within 6 months beginning with the date of the application or such longer period beginning with that date as may be prescribed.
(5) After section 95 insert—
Trustees' further duties: collective money purchase benefits
95A (1) If the trustees receive an application under section 91 relating to money purchase benefits that are collective money purchase benefits—
(a) they must give the member notice in writing of the cash equivalent that relates to those benefits, and
(b) they must not without the written consent of the member enter into an agreement with a third party to use the member's cash equivalent in a way specified in section 91(2) before the end of the period mentioned in subsection (2).
(2) The period referred to in subsection (1)(b) is—
(a) the period of 3 weeks beginning with the day after the day on which the notice is given, or
(b) such other period as may be specified in regulations.
(3) Any action taken in contravention of subsection (1)(b) is void.
(6) In section 96B (meaning of “scheme rules”: occupational pension schemes), in subsection (2)—
(a) in paragraph (a), at the end insert—
(xiii) regulations made under section 69(4) of or paragraph 1(6) of Schedule 5 to the Pension Schemes Act 2021;
(xiv) sections 85, 90, 92, 93 and 96 of the Pension Schemes Act 2021;
;
(b) in paragraph (b), at the end insert—
(x) sections 69(7)(b), 85(5), 90(6), 92(6), 93(2) and 96(5) of and paragraph 1(7) of Schedule 5 to the Pension Schemes Act 2021.
(1) The Pensions Regulator must maintain and publish a list of authorised collective money purchase schemes.
(2) The list—
(a) must identify each authorised collective money purchase scheme by name, and
(b) may include any other information that the Pensions Regulator considers appropriate.
(1) The trustees of an authorised unconnected multiple employer scheme must send the scheme’s accounts to the Pensions Regulator.
(2) The accounts must be sent to the Regulator no later than two months after they are obtained by the trustees.
(3) The scheme proprietor of an authorised unconnected multiple employer scheme must send to the Pensions Regulator—
(a) the scheme proprietor’s accounts prepared and audited as individual accounts in accordance with the applicable requirements, and
(b) if the scheme proprietor is partly or wholly funded by an undertaking other than an unincorporated association (“a relevant undertaking”), the accounts of that undertaking prepared and audited in accordance with the applicable requirements.
(4) The accounts of the scheme proprietor and any relevant undertaking must be sent to the Regulator—
(a) no later than nine months after the end of the financial year to which they relate, or
(b) if an item 4A, 4B or 7A triggering event occurs in relation to the scheme (see section 82) and the Pensions Regulator gives notice to the scheme proprietor requiring that accounts be sent early, within such shorter period after the end of the financial year to which they relate as is specified in the notice.
(5) In subsection (4) “financial year” in relation to a scheme proprietor or a relevant undertaking is to be interpreted in accordance with—
(a) the requirements of the law referred to in section 59(3A), or
(b) where no such meaning is given to “financial year” in those requirements, the Companies Act 2006.
(6) Subsections (3A) to (3C) of section 59 (where accounts are prepared and audited as individual accounts in accordance with the applicable requirements) apply for the purposes of this section.
(7) Article 10 of the Pensions (Northern Ireland) Order 1995 (civil penalties) applies to a person who fails to comply with a requirement imposed by or under this section.
(1) The Pensions Regulator may by notice require the trustees of a collective money purchase scheme to submit a supervisory return.
(2) The Department may make regulations setting out the information that the Pensions Regulator may require in a supervisory return.
(3) The notice must specify—
(a) the information required to be included in the return,
(b) the manner and form in which the return must be submitted, and
(c) the period (of at least 28 days) within which the return must be submitted.
(4) The trustees of a collective money purchase scheme may not be required to submit a supervisory return more than once in any 12 month period.
(5) Article 10 of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (civil penalties) applies to a trustee who fails to submit a supervisory return when required to do so.
(6) Regulations under subsection (2) are subject to negative resolution.
79 Duty to notify the Pensions Regulator of significant events
(1) Where a person mentioned in subsection (2) becomes aware of the fact that a significant event has occurred in relation to an authorised collective money purchase scheme, the person must (subject to subsections (6) and (7)) give notice of that fact, in writing, to the Pensions Regulator as soon as reasonably practicable.
(2) The persons are—
(a) a trustee of the scheme;
(b) an employer in relation to the scheme;
(ba) where the scheme is an unconnected multiple employer scheme, the scheme proprietor;
(bb) where the scheme is an unconnected multiple employer scheme, a person who promotes or markets the scheme;
(bc) where the scheme is an unconnected multiple employer scheme, a chief or other senior financial officer of the scheme;
(bd) where the scheme is an unconnected multiple employer scheme, a chief or other senior investment officer of the scheme;
(c) a person who (alone or with others) has power to appoint or remove a trustee;
(d) a person who (alone or with others) has power to vary the provisions of the scheme;
(e) a person who provides legal, financial or actuarial advice in relation to the scheme;
(f) a person who manages the scheme administration services;
(g) a person acting in a capacity specified in regulations made by the Department.
(3) The Department must make regulations setting out the events that constitute significant events for the purposes of this section.
(4) The Department may by regulations specify further information that is to be provided by a person required to give notice under this section.
(5) Except as provided by subsections (6) and (7), the disclosure of information under this section does not breach—
(a) any obligation of confidence owed by the person making the disclosure, or
(b) any other restriction on the disclosure of information (however imposed).
(6) This section does not require a disclosure of information if the disclosure would contravene the data protection legislation (but in determining whether a disclosure of information would do so, take into account the duty imposed by this section).
(7) A person is not required by this section to disclose anything in respect of which a claim to legal professional privilege could be maintained in legal proceedings.
(8) Article 10 of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (civil penalties) applies to a person who fails to comply with a requirement imposed by or under this section.
(9) The first regulations under subsection (3) are subject to confirmatory procedure.
(10) Subsequent regulations under subsection (3), and regulations under subsection (2)(g) or (4), are subject to negative resolution.
(1) The Pensions Regulator may give a risk notice to the trustees of a collective money purchase scheme if the Regulator considers that—
(a) there is an issue of concern in relation to the scheme, and
(b) the scheme will breach the authorisation criteria, or is likely to breach them, if the issue is not resolved.
(1A) Where the scheme is an unconnected multiple employer scheme the Pensions Regulator may give a risk notice to the scheme proprietor if the Regulator considers that—
(a) there is an issue of concern in relation to the scheme, and
(b) the scheme will breach the authorisation criteria, or is likely to breach them, if the issue is not resolved.
(2) A risk notice is a notice that requires the trustees of the scheme or (as the case may be) the scheme proprietor to submit to the Pensions Regulator a plan (a “resolution plan”) setting out proposals for resolving the issue of concern.
(3) A risk notice must—
(a) identify the issue of concern;
(b) specify the date by which the resolution plan is to be submitted.
(4) If the Pensions Regulator is not satisfied that the proposals in a resolution plan are likely to be adequate to resolve the issue of concern, the Regulator may give a further notice to the trustees or the scheme proprietor requiring them or the proprietor (as the case may be) to submit a revised plan by a date specified in the notice.
(4A) Where risk notices relating to the same issue of concern have been issued to the trustees of the scheme and the scheme proprietor, the reference in subsection (4) to the proposals in a resolution plan is to be read as a reference to the proposals in the resolution plans of the trustees and the scheme proprietor taken together.
(5) The trustees or (as the case may be) the scheme proprietor must implement the proposals in a resolution plan if the Pensions Regulator—
(a) is satisfied that the proposals are likely to be adequate to resolve the issue of concern (whether alone or together with the proposals in another resolution plan relating to the same issue of concern), and
(b) notifies the trustees or the scheme proprietor accordingly.
(6) The Pensions Regulator may direct the trustees or the scheme proprietor to comply with the requirement imposed by subsection (5).
(7) Where the trustees or the scheme proprietor are required by subsection (5) to implement the proposals in a resolution plan, the trustees or (as the case may be) the scheme proprietor must—
(a) submit to the Pensions Regulator, before the end of a period specified in regulations made by the Department, a report setting out what progress they are making in implementing the proposals (a “progress report”);
(b) submit further progress reports to the Pensions Regulator at intervals specified by the Pensions Regulator.
(8) Resolution plans and progress reports must be provided in the manner and form specified by the Pensions Regulator.
(9) A reference to a resolution plan in subsections (4) to (8) includes a reference to a resolution plan as revised under subsection (4).
(10) The Department may by regulations—
(a) specify information that a risk notice must contain;
(b) provide that the date referred to in subsection (3)(b) or (4) must fall before the end of a period specified in the regulations.
(11) Article 10 of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (civil penalties) applies to a trustee or a scheme proprietor who fails to comply with—
(a) a notice under subsection (1) , (1A) or (4),
(b) a direction under subsection (6), or
(c) a requirement imposed by subsection (7).
(12) Regulations under this section are subject to negative resolution.
(1) If the Pensions Regulator stops being satisfied that an authorised collective money purchase scheme meets the authorisation criteria, it may decide to withdraw the scheme's authorisation.
(2) A warning notice under the standard procedure or a determination notice under the special procedure given in relation to a decision under subsection (1) must—
(a) explain that the issue of the notice is a triggering event (see section 82), and
(b) include an explanation of the trustees' duties under sections 82 to 96.
(3) On withdrawal of a scheme's authorisation, the Pensions Regulator must—
(a) notify the trustees that the scheme is no longer authorised, and
(b) remove the scheme from the list of authorised collective money purchase schemes.
(4) In this Part—
“determination notice” has the meaning given in Article 93(2)(a) of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1));
“special procedure” has the meaning given in Article 93 of that Order;
“standard procedure” has the meaning given in Article 91 of that Order;
“warning notice” has the meaning given in Article 91(2)(a) of that Order.
(1) A triggering event occurs in relation to a collective money purchase scheme if an event within the second column of the triggering events table occurs in relation to it, subject to subsection (2).
(2) An event within any of items 4 to 10 of the triggering events table is not a triggering event in relation to a collective money purchase scheme if it occurs within an existing triggering event period for the scheme (see section 83).
(3) A triggering event occurs on the date specified in relation to the event in the third column of the triggering events table.
(4) For the purposes of this Part “the triggering events table” is—
Item | Triggering event | Date event occurs
1. | The Pensions Regulator issues a warning notice under the standard procedure in respect of a decision to withdraw the scheme's authorisation. | The date on which the notice is issued.
2. | The Pensions Regulator issues a determination notice under the special procedure in respect of a decision to withdraw the scheme's authorisation. | The date on which the notice is issued.
3. | The Pensions Regulator gives a notification under section 58(3) (scheme not authorised). | The date on which the notification is given.
4. | Where the scheme is a single or connected employer scheme, an insolvency event occurs in relation to an employer or a relevant former employer. | The date on which the insolvency event occurs.
4A. | Where the scheme is an unconnected multiple employer scheme, an insolvency event occurs in relation to the scheme proprietor. | The date on which the insolvency event occurs.
4B. | Where the scheme is an unconnected multiple employer scheme and the scheme proprietor is a person or body of a kind that meets requirements prescribed under Article 113(1)(b) of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1)), the scheme proprietor becomes unlikely to continue as a going concern. | The earlier of— the date on which the scheme proprietor notifies the Pensions Regulator of that fact, and the date on which the trustees become aware of that fact.
5. | Where the scheme is a single or connected employer scheme, an employer or a relevant former employer becomes unlikely to continue as a going concern, where the employer or relevant former employer is a person or body of a kind that meets the requirements prescribed under Article 113(1)(b) of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1)). | The earlier of— the date on which the employer or relevant former employer notifies the Pensions Regulator of that fact, and the date on which the trustees become aware of that fact.
6. | A person who has power to do so under the provisions of the scheme decides that the scheme should be wound up. | The date of the decision.
7. | An event occurs that is required or permitted by the provisions of the scheme to result in the winding up of the scheme. | The date on which the event occurs.
7A. | Where the scheme is an unconnected multiple employer scheme, the scheme proprietor decides to end the relationship or arrangement with the scheme by virtue of which it is the scheme proprietor. | The date of the decision. the date on which the scheme proprietor notifies the Pensions Regulator of that fact, and the date on which the trustees become aware of that fact.
7B. | Where the scheme is an unconnected multiple employer scheme, the scheme proprietor ends the relationship or arrangement with the scheme by virtue of which it is the scheme proprietor. | The earlier of— the date on which the scheme proprietor notifies the Pensions Regulator of that fact, and the date on which the trustees become aware of that fact.
8. | A person who has power to do so under the provisions of the scheme decides that the scheme should become a closed scheme. | The date of the decision.
9. | An event occurs that is required or permitted by the provisions of the scheme to result in the scheme becoming a closed scheme. | The date on which the event occurs.
10. | Where the scheme is an unconnected multiple employer scheme, the trustees decide that the scheme is at risk of failure and so it is necessary for one of the continuity options to be pursued (see section 85). | The date of the decision.
(4A) An unconnected multiple employer scheme is to be taken to permit the trustees of the scheme to make the decision referred to in item 10 of the table, to the extent that it would not otherwise do so.
(5) In this Part—
“item 1 triggering event” means an event falling within item 1 of the triggering events table (and similar references using other item numbers are to be read accordingly);
“relevant former employer”, in relation to a single or connected employer scheme, means a person who has ceased to be an employer in relation to the scheme but who—
is subject to an actual or contingent obligation to contribute financially to the scheme, whether by making contributions towards the costs of running the scheme or otherwise, or
has power to take a decision about the operation of the scheme, either alone or with other persons who are or have been employers in relation to the scheme.
(6) In this section “closed”, in relation to a collective money purchase scheme, means closed to new contributions or new members (or both).
(1) For the purposes of this Part, a “triggering event period” for a collective money purchase scheme is a period—
(a) starting with the date on which a triggering event occurs in relation to the scheme, and
(b) ending with the earliest of the dates given by subsection (2).
(2) The dates are—
(a) the date on which the trustees receive from the Pensions Regulator—
(i) notification under section 88(4) that the Regulator is satisfied that the triggering event has been resolved, or
(ii) notification under section 89(4) that the Regulator is satisfied that preparations for conversion to a closed scheme are complete and that the conversion will resolve the relevant events;
(b) the date on which the scheme is wound up;
(c) in the case of an item 1 or 2 triggering event (notice in respect of a decision to withdraw authorisation), the date on which it becomes clear that authorisation is not to be withdrawn.
(3) For the purposes of subsection (2)(c), it becomes clear that authorisation is not to be withdrawn—
(a) in the circumstances set out in relation to the event in the second column of the table in subsection (4), and
(b) on the date given in relation to those circumstances in the third column of that table.
(4) The table is—
Triggering event | Circumstances | Date
Item 1 (issue of warning notice under the standard procedure) | 1 The Pensions Regulator makes a determination not to withdraw the scheme's authorisation, and 2 there is no referral of the determination to the Tribunal within the time period allowed for doing so. | The date of the Pensions Regulator's determination.
Item 2 (issue of determination notice under the special procedure) | 1 On a review under Article 94 of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1)), the Pensions Regulator makes a determination that the scheme's authorisation should not be withdrawn, and 2 there is no referral of the determination to the Tribunal within the time period allowed for doing so. | The date of the Pensions Regulator's determination.
Item 1 or 2 | 1 On a referral to the Tribunal of a determination by the Pensions Regulator, the Tribunal makes a determination the effect of which is that the scheme's authorisation should not be withdrawn, and 2 either— (a) no appeal is brought against the Tribunal's determination within the time period allowed for doing so, or (b) an appeal is brought within that time period but is later withdrawn. | The date of the Tribunal's determination.
Item 1 or 2 | The effect of an appeal against a determination by the Tribunal is that the scheme's authorisation should not be withdrawn. | The date on which the appeal is finally disposed of.
(5) In this section “the Tribunal” has the meaning given in—
(a) Article 91(7) of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1)), in a case where the standard procedure applies;
(b) Article 94(13) of that Order, in a case where the special procedure applies.
(1) If a triggering event listed in the first column of the table in subsection (2) occurs in relation to a collective money purchase scheme, each person specified in relation to the event in the second column of that table must (subject to subsections (12) and (13)) notify the Pensions Regulator of the occurrence of the event.
(2) The table is—
Event | Specified person
Item 4 triggering event (an insolvency event occurs in relation to an employer or a relevant former employer) | The employer or relevant former employer.
A trustee who is aware of the event.
Item 4A triggering event (an insolvency event occurs in relation to the scheme proprietor) | The scheme proprietor.
A trustee who is aware of the event.
Item 4B triggering event (a scheme proprietor becomes unlikely to continue as a going concern, where the scheme proprietor is a person or body of a kind that meets the requirements prescribed under Article 113(1)(b) of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1))) | The scheme proprietor.
A trustee who is aware of the event.
Item 5 triggering event (an employer or a relevant former employer becomes unlikely to continue as a going concern, where the employer or relevant former employer is a person or body of a kind that meets the requirements prescribed under Article 113(1)(b) of the ) | The employer or relevant former employer.
A trustee who is aware of the event.
Item 6 triggering event (a person decides that the scheme should be wound up) | The person who made the decision.
A trustee who is aware of the event (if not the person who made the decision).
Where the scheme is a single or connected employer scheme, an employer who is aware of the event (if not the person who made the decision).
Where the scheme is an unconnected multiple employer scheme, the scheme proprietor (if not the person who made the decision) if they are aware of the event.
Item 7 triggering event (an event occurs that is required or permitted by the provisions of the scheme to result in the winding up of the scheme) | A trustee who is aware of the event.
Where the scheme is a single or connected employer scheme, an employer who is aware of the event.
Where the scheme is an unconnected multiple employer scheme, the scheme proprietor if they are aware of the event.
Item 7A triggering event (scheme proprietor decides to end relationship or arrangement) | The scheme proprietor.
A trustee who is aware of the event.
Item 7B triggering event (scheme proprietor ends relationship or arrangement) | The scheme proprietor.
A trustee who is aware of the event.
Item 8 triggering event (a person decides that the scheme should become a closed scheme) | The person who made the decision.
A trustee who is aware of the event (if not the person who made the decision).
Where the scheme is a single or connected employer scheme, an employer who is aware of the event (if not the person who made the decision).
Where the scheme is an unconnected multiple employer scheme, the scheme proprietor (if not the person who made the decision) if they are aware of the event.
Item 9 triggering event (an event occurs that is required or permitted by the provisions of the scheme to result in the scheme becoming a closed scheme) | A trustee who is aware of the event.
Where the scheme is a single or connected employer scheme, an employer who is aware of the event.
Where the scheme is an unconnected multiple employer scheme, the scheme proprietor if they are aware of the event.
Item 10 triggering event (trustees decide that it is necessary to pursue continuity option | The trustees.
The scheme proprietor if they are aware of the event.
(3) If a triggering event occurs in relation to a single or connected employer scheme, a trustee who is aware of the event must (subject to subsections (5), (6), (12) and (13)) give the required notification to each employer or relevant former employer.
(3A) If a triggering event occurs in relation to an unconnected multiple employer scheme, a trustee who is aware of the event must (subject to subsections (5A), (6), (12) and (13)) give the required notification to each employer and the scheme proprietor.
(4) In this section “the required notification”, in relation to a triggering event, means notification of—
(a) the occurrence of the event, and
(b) such other matters relating to the event as may be specified in regulations made by the Department.
(5) In the case of an item 4 or 5 triggering event, subsection (4)(a) does not apply as regards notification of the employer or relevant former employer in respect of whom the event occurs.
(5A) In the case of an item 4A, 4B, 7A or 7B triggering event, subsection (4)(a) does not apply as regards notification of the scheme proprietor.
(6) In the case of an item 6 or 8 triggering event, subsection (4)(a) does not apply as regards notification of the person who decided that the scheme—
(a) should be wound up, or
(b) (as the case may be) should become a closed scheme.
(7) If an item 4 or 5 triggering event occurs in relation to a single or connected employer scheme, each employer or relevant former employer in respect of whom the event occurs must (subject to subsections (12) and (13)) give the required notification to the trustees.
(7A) If an item 4A or 4B triggering event occurs in relation to an unconnected multiple employer scheme, the scheme proprietor must (subject to subsections (12) and (13)) give the required notification to the trustees.
(8) If an item 6 or 8 triggering event occurs in relation to a collective money purchase scheme, the person who decided that the scheme—
(a) should be wound up, or
(b) (as the case may be) should become a closed scheme,
must (if that person is not the trustees, and subject to subsections (12) and (13)) give the required notification to the trustees.
(9) If an item 7 or 9 triggering event occurs in relation to a single or connected employer scheme, each employer or relevant former employer who is aware of the event must (subject to subsections (12) and (13)) give the required notification to the trustees.
(9A) If an item 7, 7A, 7B or 9 triggering event occurs in relation to an unconnected multiple employer scheme, the scheme proprietor, if they are aware of the event, must (subject to subsections (12) and (13)) give the required notification to the trustees.
(10) A notification under this section must be given before the end of the period specified in regulations made by the Department.
(11) Except as provided by subsections (12) and (13), the disclosure of information under this section does not breach—
(a) any obligation of confidence owed by the person making the disclosure, or
(b) any other restriction on the disclosure of information (however imposed).
(12) This section does not require a disclosure of information if the disclosure would contravene the data protection legislation (but in determining whether a disclosure of information would do so, take into account the duty imposed by this section).
(13) A person is not required by this section to disclose anything in respect of which a claim to legal professional privilege could be maintained in legal proceedings.
(14) Article 10 of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (civil penalties) applies to a person who fails to comply with a requirement imposed by this section.
(15) Regulations under this section are subject to negative resolution.
(1) If a triggering event occurs in relation to a collective money purchase scheme, the trustees must pursue one of the continuity options.
(2) The continuity options are—
(a) continuity option 1 (discharge of liabilities and winding up) (see section 87);
(b) continuity option 2 (resolving triggering event) (see section 88);
(c) continuity option 3 (conversion to closed scheme) (see section 89).
(3) The trustees must pursue continuity option 1—
(a) if the triggering event is an item 1 or 2 triggering event and the decision to withdraw authorisation has become final (see section 86), or
(b) if the triggering event is an item 3 triggering event.
(4) In those cases, the trustees must pursue continuity option 1 even if—
(a) the item 1, 2 or 3 triggering event occurs within the triggering event period of an earlier triggering event, and
(b) the trustees have already decided to pursue continuity option 2 or 3 in respect of the earlier triggering event.
(5) The trustees may pursue continuity option 3 only if (or to the extent that) the provisions of the scheme allow them to do so.
Subject to that, this section overrides any provision of the collective money purchase scheme to the extent that there is a conflict.
(6) Article 10 of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (civil penalties) applies to a person who fails to comply with a requirement imposed by this section.
86 When a decision to withdraw authorisation becomes final
(1) For the purposes of this Part, in relation to an item 1 or 2 triggering event, a decision to withdraw authorisation becomes final—
(a) in the circumstances set out in relation to the event in the second column of the table in subsection (2), and
(b) on the date given in relation to those circumstances in the third column of that table.
(2) The table is—
Triggering event | Circumstances | Date
Item 1 (issue of warning notice under the standard procedure) | 1 The Pensions Regulator makes a determination to withdraw the scheme's authorisation, and 2 there is no referral of the determination to the Tribunal within the time period allowed for doing so. | The date of the Pensions Regulator's determination.
Item 2 (issue of determination notice under the special procedure) | 1 On a review under Article 94 of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1)), the Pensions Regulator makes a determination that the scheme's authorisation should be withdrawn, and 2 there is no referral of the determination to the Tribunal within the time period allowed for doing so. | The date of the Pensions Regulator's determination.
Item 1 or 2 | 1 On a referral to the Tribunal of a determination by the Pensions Regulator, the Tribunal makes a determination the effect of which is that the scheme's authorisation should be withdrawn, and 2 either— (a) no appeal is brought against the Tribunal's determination within the time period allowed for doing so, or (b) an appeal is brought within that time period but is later withdrawn. | The date of the Tribunal's determination.
Item 1 or 2 | The effect of an appeal against a determination by the Tribunal is that the scheme's authorisation should be withdrawn. | The date on which the appeal is finally disposed of.
(3) In this section “the Tribunal” has the meaning given in—
(a) Article 91(7) of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1)), in a case where the standard procedure applies;
(b) Article 94(13) of that Order, in a case where the special procedure applies.
87 Continuity option 1: discharge of liabilities and winding up
(1) Where the trustees of a collective money purchase scheme are required, or decide, to pursue continuity option 1, they must—
(a) quantify, in the case of each beneficiary, the amount that represents the value of the beneficiary's accrued rights to benefits under the scheme;
(b) formulate a proposal for discharging the scheme's liability to each beneficiary in respect of those rights, in one of the ways set out in subsection (2);
(c) notify the following of the proposal and of such other matters as may be specified in regulations made by the Department—
(i) each employer,
(ii) each beneficiary, and
(iii) where the scheme is a single or connected employer scheme, each relevant former employer.
(2) The ways of discharging the scheme's liability referred to in subsection (1)(b) are—
(a) transferring the value of the beneficiaries' accrued rights to benefits under the scheme to a collective money purchase scheme or to a Master Trust scheme;
(b) transferring the value of those rights, in such circumstances as may be specified in regulations made by the Department, to a pension scheme that has characteristics specified in the regulations;
(c) securing, in such circumstances as may be specified in regulations made by the Department, the payment of benefits by such other means (an “alternative payment mechanism”) as may be specified in the regulations.
(3) A proposal under subsection (1)(b) may deal with the rights of different descriptions of beneficiaries in different ways.
(4) Subsections (1)(b) and (2) have effect subject to—
(a) Part 4ZA of the Pension Schemes (Northern Ireland) Act 1993 (transfers and contribution refunds);
(b) provision made by regulations under subsection (6).
(5) Notification under subsection (1)(c) must be given—
(a) in the manner specified in regulations made by the Department, and
(b) before the end of the period specified in the regulations.
(6) The Department may by regulations make provision for the purposes of enabling continuity option 1 to be given effect, which may include—
(a) provision about how continuity option 1 is to be pursued by the trustees of a collective money purchase scheme;
(b) provision conferring rights on beneficiaries or employers;
(c) provision imposing duties on employers or trustees;
(d) provision conferring power on the Pensions Regulator to direct trustees to do things permitted or required by the regulations;
(e) provision deeming a beneficiary the value of whose accrued rights are to be transferred to a scheme that is not a collective money purchase scheme or a Master Trust scheme to have entered into an agreement with a person of a description specified in the regulations.
(7) Regulations under subsection (6) must include—
(a) provision about how the quantification referred to in subsection (1)(a) is to be carried out (which may be different in relation to different descriptions of beneficiaries);
(b) provision for securing that a person who has become a pensioner beneficiary (whether before or after the occurrence of the triggering event as a result of which the trustees are pursuing continuity option 1) receives a periodic income, at a rate or of an amount that is calculated by reference to the amount referred to in subsection (1)(a), until the time when the proposal under subsection (1)(b) is implemented or some other specified time;
(c) provision about how rights conferred by the regulations may be exercised (including the time periods within which they may be exercised);
(d) provision specifying requirements (which may include approval or authorisation by the Pensions Regulator in accordance with the regulations) to be met in the case of a pension scheme, or an alternative payment mechanism, by means of which it is proposed to discharge the collective money purchase scheme's liabilities to beneficiaries in one of the ways set out in subsection (2);
(e) provision requiring those responsible for a pension scheme by means of which it is proposed to discharge the collective money purchase scheme's liabilities to beneficiaries (“the receiving scheme”) to provide the Pensions Regulator with a document setting out the level of administration charges that applied in relation to members of the receiving scheme, in the manner and as at the date specified or described in the regulations;
(f) provision imposing duties on the trustees to notify all or a specified description of employers and beneficiaries of their rights under the regulations and of members' rights under Part 4ZA of the Pension Schemes (Northern Ireland) Act 1993;
(g) provision about the winding up of the collective money purchase scheme in circumstances where the scheme's liabilities to beneficiaries are discharged.
(8) In this section—
“beneficiary”, in relation to the collective money purchase scheme, means—
a member of the scheme, or
a person who has survived a member of the scheme and has an entitlement to benefits, or a right to future benefits, under the scheme rules in respect of the member;
“pensioner beneficiary”, in relation to the collective money purchase scheme, means a person who is entitled to the present payment of pension or other benefits under the scheme;
“specified” means specified in regulations under subsection (6).
(9) Article 10 of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (civil penalties) applies to a person who fails to comply with a requirement imposed by this section.
(10) Regulations under this section may provide for the application of Article 10 of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) to a person who fails to comply with a requirement imposed by the regulations.
(11) Regulations under subsection (2) or (6) are subject to confirmatory procedure.
(12) Regulations under subsection (1)(c) or (5) are subject to negative resolution.
(1) Where the trustees of a collective money purchase scheme decide to pursue continuity option 2, they must attempt to resolve the triggering event.
(2) The trustees must notify the Pensions Regulator when they consider that the triggering event has been resolved.
(3) The notification must—
(a) set out how the trustees consider that the triggering event has been resolved;
(b) be given before the end of the period specified in regulations made by the Department.
(4) After receiving the notification, the Pensions Regulator must notify the trustees as to whether it is satisfied that the triggering event has been resolved.
(5) The Pensions Regulator may not form the view that a triggering event (“the relevant event”) has been resolved unless it is satisfied that any other event within the triggering events table that has occurred in relation to the scheme since the occurrence of the relevant event has also been resolved.
(6) Article 10 of the Pensions (Northern Ireland) Order 1995 (civil penalties) applies to a trustee who fails to comply with a requirement imposed by this section.
(7) Regulations under subsection (3)(b) are subject to negative resolution.
89 Continuity option 3: conversion to closed scheme
(1) This section applies where the trustees of a collective money purchase scheme decide to pursue continuity option 3.
(2) The trustees must notify the Pensions Regulator when they consider that preparations for the conversion of the scheme into a closed scheme are complete.
(3) The Department may by regulations require notification under subsection (2) to be given before the end of a period specified in the regulations.
(4) If the Pensions Regulator is satisfied—
(a) that preparations for the conversion of the scheme into a closed scheme are complete, and
(b) that the conversion will resolve the triggering event giving rise to the decision to pursue continuity option 3, and any other event within the triggering events table that has subsequently occurred in relation to the collective money purchase scheme,
the Regulator must notify the trustees accordingly.
(5) The conversion of the scheme into a closed scheme may be carried out only in accordance with the provisions of the scheme.
(6) The scheme may not begin operating as a closed scheme until the trustees have received notification under subsection (4).
(7) Where the trustees have pursued continuity option 3 they may not later reverse the closure of the scheme (either completely or to any extent).
(8) Article 10 of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (civil penalties) applies to a trustee who fails to comply with a requirement or restriction imposed by this section.
(9) Regulations under subsection (3) are subject to negative resolution.
(10) In this section “closed”, in relation to a collective money purchase scheme, means closed to new contributions or new members (or both).
The reference to closure of the scheme in subsection (7) is to be read accordingly.
(1) If a triggering event occurs in relation to a collective money purchase scheme, the trustees must—
(a) produce a document setting out how the interests of members of the scheme are to be protected following the occurrence of the event (an “implementation strategy”), and
(b) submit it to the Pensions Regulator for approval before the end of a period specified in regulations made by the Department.
This is subject to subsections (2)(a) and (3)(a).
(2) If an item 1, 2 or 3 triggering event occurs within the triggering event period for an earlier triggering event—
(a) the trustees are not required to submit an implementation strategy in respect of the earlier triggering event;
(b) any implementation strategy approved by the Pensions Regulator in respect of the earlier triggering event ceases to have effect when the later triggering event occurs.
(3) In the case of an item 1 or 2 triggering event—
(a) the trustees are required to submit an implementation strategy only if the decision to withdraw authorisation has become final (see section 86);
(b) if it becomes clear that authorisation is not to be withdrawn, subsection (2) ceases to have effect on the date on which that becomes clear.
Subsections (3) to (5) of section 83 apply for the purposes of paragraph (b) above as they apply for the purposes of subsection (2)(c) of that section.
(4) The Pensions Regulator may direct the trustees to comply with a requirement imposed by this section.
(5) Article 10 of the Pensions (Northern Ireland) Order 1995 (civil penalties) applies to a person who fails to comply with a direction under subsection (4).
(6) This section overrides any provision of the collective money purchase scheme, to the extent that there is a conflict.
(7) Regulations under subsection (1)(b) are subject to negative resolution.
(1) The Pensions Regulator may approve an implementation strategy only if it is satisfied that the strategy is adequate.
(2) Subsections (3) to (6) apply for the purposes of enabling the Pensions Regulator to decide whether it is satisfied that an implementation strategy for a collective money purchase scheme is adequate.
(3) An implementation strategy must include information about the levels of administration charges in relation to members of the scheme.
(4) The information must—
(a) relate to the levels of administration charges as at the date specified or described in regulations made by the Department, and
(b) be set out in the manner specified or described in the regulations.
(5) An implementation strategy must include information about the following matters—
(a) the continuity option that is to be pursued (see section 85);
(b) where continuity option 1 (discharge of liabilities and winding up) is to be pursued—
(i) the scheme or schemes to which it is proposed to transfer the value of accrued rights to benefits, or the alternative payment mechanism by which the payment of benefits is to be secured, if known;
(ii) when the transfer is expected to take place, or (as the case may be) when the payment of benefits is expected to be secured;
(c) where continuity option 2 (resolving the triggering event) is to be pursued, how it is proposed that the triggering event should be resolved;
(d) where continuity option 3 (conversion to closed scheme) is to be pursued—
(i) the way in which, the extent to which and the time by which it is proposed to close the scheme;
(ii) how the scheme will continue to meet the authorisation criteria;
(iii) any revisions that will be needed to the viability report and the continuity strategy (see sections 64 and 68).
(iv) where the scheme is an unconnected multiple employer scheme, any revisions that will be needed to the business plan (see section 65A).
(6) An implementation strategy must—
(a) include any other information specified or described in regulations made by the Department, and
(b) be prepared in accordance with regulations made by the Department.
(7) Regulations under this section are subject to negative resolution.
92 Trustees' duties once implementation strategy approved
(1) When the Pensions Regulator has notified the trustees of a collective money purchase scheme that an implementation strategy relating to the scheme is approved, the trustees must—
(a) pursue the continuity option identified in the strategy, and
(b) take such other steps as are identified in the strategy in order to carry it out.
(2) The Department may by regulations require the trustees of a collective money purchase scheme to make available an approved implementation strategy relating to the scheme, before the end of the period specified or described in the regulations, to employers or, where the scheme is a single or connected employer scheme, relevant former employers that are of a description specified in the regulations.
(3) If an item 1, 2 or 3 triggering event occurs within the triggering event period for an earlier triggering event—
(a) the trustees cease to be subject to the requirements of subsection (1) and regulations under subsection (2) in respect of an approved implementation strategy relating to the earlier triggering event, but
(b) in the case of an item 1 or 2 triggering event, if it becomes clear that authorisation is not to be withdrawn, the trustees are again subject to those requirements from the date on which that becomes clear.
Subsections (3) to (5) of section 83 apply for the purposes of paragraph (b) above as they apply for the purposes of subsection (2)(c) of that section.
(4) The Pensions Regulator may direct the trustees to comply with subsection (1), if they fail to do so.
(5) Article 10 of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (civil penalties) applies to a person who fails to comply with a direction under subsection (4).
(6) To the extent that there is a conflict, this section overrides a provision of—
(a) a collective money purchase scheme, or
(b) a contract between the trustees of a collective money purchase scheme and a person providing services in relation to the scheme.
(7) Regulations under subsection (2) are subject to negative resolution.
93 Prohibition on winding up except in accordance with continuity option 1
(1) A person may wind up a collective money purchase scheme only in accordance with continuity option 1 (see section 87).
(2) Subsection (1) overrides any provision of a collective money purchase scheme to the extent that there is a conflict.
(3) Article 10 of the Pensions (Northern Ireland) Order 1995 (civil penalties) applies to a person who fails to comply with subsection (1).
(1) During a triggering event period for a collective money purchase scheme, the trustees must submit reports to the Pensions Regulator.
(2) The first report must be submitted before the end of a period specified in regulations made by the Department.
(3) Subsequent reports must be submitted at intervals specified by the Pensions Regulator.
(4) The reports must—
(a) report on progress in carrying out the implementation strategy,
(b) record events or decisions of a description specified in regulations made by the Department,
(c) contain such other information as is specified in regulations made by the Department, and
(d) be made in the manner and form specified by the Pensions Regulator.
(5) Article 10 of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (civil penalties) applies to a person who fails to comply with a requirement imposed by this section.
(6) Regulations under this section are subject to negative resolution.
(1) This section applies during a triggering event period for a collective money purchase scheme.
(2) The Pensions Regulator may make a pause order in relation to the scheme if either of the following two conditions is met.
(3) Condition 1 is that the Pensions Regulator is satisfied that making a pause order will help the trustees to carry out the implementation strategy.
(4) Condition 2 is that the Pensions Regulator is satisfied that—
(a) there is, or is likely to be if a pause order is not made, an immediate risk to the interests of members of the scheme or the assets of the scheme, and
(b) it is necessary to make a pause order to protect the interests of the generality of the members of the scheme.
(5) A pause order is an order that during the period for which it has effect one or more of the following directions has effect—
(a) a direction that no new members (or no new members of a specified description) are to be admitted to the scheme;
(b) a direction that no further payments (or no further payments of a specified description) are to be made towards the scheme—
(i) by or on behalf of employers or , where the scheme is a single or connected employer scheme, relevant former employers (or employers or relevant former employers of a specified description), or
(ii) by or in respect of members (or members of a specified description);
(c) a direction that an amount (or specified amount) which—
(i) corresponds to a payment that would be due to be made towards the scheme in respect of a member but for a direction under paragraph (b), and
(ii) has been deducted from a payment of earnings in respect of an employment,
is to be repaid to the member in question by the employer;
(d) a direction that no benefits (or no benefits of a specified description) are to be paid to or in respect of members (or members of a specified description) under the scheme rules;
(e) a direction that—
(i) no transfers (or no transfers of a specified description) of or in respect of a member's rights under the scheme rules are to be made from the scheme,
(ii) no transfer payments (or no transfer payments of a specified description) in respect of a member's rights under the scheme rules are to be made from the scheme, or
(iii) no other steps (or no other steps of a specified description) are to be taken to discharge a liability of the scheme to or in respect of a member of the scheme in respect of pensions or other benefits.
(6) In subsection (5)(b)—
(a) a reference to payments does not include payments due to be made before the order takes effect, and
(b) a reference to payments towards a scheme includes payments in respect of pension credits where the person entitled to the credit is a member of the scheme.
(7) A direction under subsection (5)(e) may provide that—
(a) no transfers of or in respect of a member's rights under the scheme rules, or no such transfers of a specified description, may be made from the scheme, or
(b) no transfer payments in respect of such rights, or no such transfer payments of a specified description, may be made from the scheme,
unless the amounts paid out from the scheme in respect of the transfers or transfer payments are determined in a specified manner and the transfers or transfer payments satisfy such other conditions as may be specified.
(8) A pause order may also require the trustees of the scheme to obtain an actuarial valuation within a specified period.
(9) A pause order containing such a requirement must specify—
(a) the date by reference to which the matters to be set out in the valuation must be determined;
(b) the information and statements that the valuation must contain;
(c) any other requirements that the valuation must satisfy.
(10) Schedule 5 makes further provision about pause orders.
(11) In this section—
“earnings” has the meaning given in section 176(1) of the Pension Schemes (Northern Ireland) Act 1993;
“pension credit” means a credit under Article 26(1)(b) of the Welfare Reform and Pensions (Northern Ireland) Order 1999 (S.I. 1999/3147 (N.I. 11)) or section 29(1)(b) of the Welfare Reform and Pensions Act 1999;
“specified” means specified in the pause order.
96 Prohibition on increasing charges etc during triggering event period
(1) During a triggering event period for a collective money purchase scheme, the trustees must not—
(a) impose administration charges on or in respect of members at levels above those set out in the implementation strategy,
(b) impose new administration charges on or in respect of members, or
(c) impose administration charges on or in respect of a member in consequence of the member leaving, or deciding to leave, the scheme during that period.
(2) The trustees of a receiving scheme that is a collective money purchase scheme or a Master Trust scheme must not—
(a) impose administration charges on or in respect of members at levels above those set out in the document provided to the Pensions Regulator by virtue of regulations under section 87(7)(e), or
(b) impose new administration charges on or in respect of members,
for the purposes of meeting any of the costs mentioned in subsection (4).
(3) The Department may by regulations—
(a) provide that subsection (1) or (2) does not apply in relation to administration charges specified or described in the regulations;
(b) make provision about how levels of administration charges are to be calculated for the purposes of this section.
(4) The costs referred to in subsection (2) are costs for which a receiving scheme is liable—
(a) which were incurred by the transferring scheme, or
(b) which relate directly to the transfer of the value of accrued rights to benefits under the transferring scheme.
(5) To the extent that there is a conflict, this section overrides a provision of—
(a) a collective money purchase scheme,
(b) a Master Trust scheme,
(c) a contract between the trustees of a collective money purchase scheme and a person providing services in relation to the scheme, or
(d) a Master Trust scheme contract within the meaning of section 39(1) of the Pension Schemes Act 2017 or any corresponding statutory provision.
(6) The Department may by regulations apply some or all of the provisions of this section to a receiving scheme that has characteristics specified in regulations under section 87(2)(b).
(7) Article 10 of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (civil penalties) applies to a trustee who fails to comply with this section.
(8) In this section—
“receiving scheme” means a pension scheme that—
receives a transfer from a transferring scheme of the value of accrued rights to benefits under that scheme during a triggering event period for that scheme, and
was proposed by the trustees of that transferring scheme, or by employers in relation to that scheme, as a scheme to which the value of those rights should be transferred;
“transferring scheme” means a collective money purchase scheme the trustees of which, following a triggering event, are pursuing continuity option 1.
(9) Regulations under subsection (3)(a) or (6), and the first regulations under subsection (3)(b), are subject to confirmatory procedure.
(10) Subsequent regulations under subsection (3)(b) are subject to negative resolution.
(1) The Department may by regulations require the trustees of a collective money purchase scheme to publish information relating to the scheme that is specified or described in the regulations.
(2) Regulations under subsection (1) may, among other things—
(a) require the trustees to publish a document specified or described in the regulations;
(b) require information or a document to be made available free of charge;
(c) require information or a document to be provided to a person in a form or by means specified or described in the regulations;
(d) require or permit information specified or described in the regulations to be excluded from a document when it is published in accordance with the regulations.
(3) In complying with a requirement imposed by regulations under subsection (1) a trustee must have regard to any guidance prepared from time to time by the Department.
(4) Article 10 of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (civil penalties) applies to a trustee who fails to take all reasonable steps to comply with a requirement imposed by regulations under this section.
(5) Regulations under subsection (1) are subject to negative resolution.
98 Powers to extend definition of qualifying schemes
(1) The Department may by regulations remove the exclusion of any of the following from the definition of “qualifying scheme” in section 54—
(a) pension schemes not established solely by one or more persons to whom section 1(2)(a) (employer) of the Pension Schemes (Northern Ireland) Act 1993 applied when the scheme was established;
(b) pension schemes used, or intended to be used, by two or more employers some or all of which are not connected with each other.
(2) The Department may by regulations make further provision about collective money purchase schemes that could not be qualifying schemes, or sections of qualifying schemes, but for regulations under subsection (1) (“relevant schemes”), including—
(a) provision about the authorisation of relevant schemes by the Pensions Regulator;
(b) provision about triggering events and continuity options;
(c) provision about administration charges during triggering event periods.
(3) Regulations under subsection (2) making provision about relevant schemes used, or intended to be used, by two or more employers some or all of which are not connected with each other may among other things—
(a) make provision corresponding or similar to provision made by or under Part 1 of the Pension Schemes Act 2017;
(b) disapply, in relation to such schemes, any statutory provision corresponding to anything in that Part.
(4) The provision that may be made under subsection (1) or (2) may be made by—
(a) modifying or amending this Part;
(b) making consequential modifications or amendments of any other statutory provision.
(4A) Where regulations under this section make provision in relation to an unconnected multiple employer scheme that corresponds or is similar to provision contained in regulations under another provision of this Part made in relation to a single or connected employer scheme, the regulations under this section are to be treated for the purposes of this Part as having been made under that other provision of this Part to the extent that they contain such provision.
(5) Regulations under this section are subject to confirmatory procedure.
(1) In this Part—
“the accounts of an unconnected multiple employer scheme” means the accounts audited by the person appointed as auditor in relation to the scheme under Article 47(1)(a) of the Pensions (Northern Ireland) Order 1995 (professional advisers) (and see subsection (1A) below);
“administration charge” has the same meaning as in paragraph 1 of Schedule 18 to the Pensions Act (Northern Ireland) 2015 (c. 5 (N.I.));
“authorisation” means authorisation under section 60 or by virtue of regulations under section 56(2) (and related expressions are to be read accordingly);
“authorisation criteria” has the meaning given in section 60(3);
“chief or other senior financial officer”, in relation to an unconnected multiple employer scheme, means a person acting in a capacity in which that person has significant influence over either or both of the following—
the management and use of financial resources of the scheme;
business decisions relating to the commercial activities of the scheme;
“chief or other senior investment officer”, in relation to an unconnected multiple employer scheme, means a person who—
is acting in a capacity in which that person has significant influence over either or both of the following—
the contents of the scheme’s investment strategy;
the implementation, management and communication of the scheme’s investment strategy, but
does not have that influence by virtue of a contract or other arrangement—
under which services relating to investments are provided in relation to the scheme, and
by virtue of which the scheme, or a person acting on behalf of the scheme, has the status of client or customer;
“Code” means a code of practice issued by the Pensions Regulator under Article 85 of the Pensions (Northern Ireland) Order 2005;
“the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act);
“the Department” means the Department for Communities in Northern Ireland;
“employer”, in relation to an occupational pension scheme, means a person who employs or engages persons who are, or are entitled to become, members of the scheme;
“implementation strategy” has the meaning given in section 90;
“insolvency event” has the meaning given in Article 105 of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1));
“investment strategy”, in relation to an unconnected multiple employer scheme, means a document prepared by the trustees setting out the strategy for investing the assets that arise or derive from the payments made by or in respect of members of the scheme;
“Master Trust scheme” means a Master Trust scheme within the meaning of the Pension Schemes Act 2017 or any corresponding statutory provision;
“member” has the meaning given in Article 121(1) of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (read with regulations made under Article 122(4) of that Order);
“occupational pension scheme” has the same meaning as in the Pension Schemes (Northern Ireland) Act 1993 (see section 1(1) of that Act);
“pension scheme” has the meaning given in section 1(5) of the Pension Schemes (Northern Ireland) Act 1993;
“the scheme actuary”, in relation to a pension scheme, means the person appointed under Article 47(1)(b) of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (professional advisers) in relation to the scheme;
“the scheme proprietor”, in relation to an unconnected multiple employer scheme, has the meaning given in section 65B(3);
“scheme rules” has the meaning given in Article 2(3) and (4) of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1));
“statutory provision” has the meaning given in section 1(f) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.));
“triggering event” has the meaning given in section 82;
“undertaking” has the meaning given in section 1161 of the Companies Act 2006;
“unincorporated association” means any body of persons unincorporate but does not include a partnership.
(1A) In relation to an unconnected multiple employer scheme which is a section of a qualifying scheme, references in this Part to the scheme’s accounts are to be read as references to the accounts of the qualifying scheme as a whole.
(2) For the purposes of this Part, an employer (“A”) is connected with another employer (“B”)—
(a) where A is, or has been, a group undertaking in relation to B within the meaning of section 1161(5) of the Companies Act 2006, or
(b) in circumstances specified in regulations made by the Department.
(3) This Part applies to a qualifying scheme—
(a) which provides both qualifying benefits and other benefits, and
(b) for which there is no power to wind up the scheme to the extent only that it provides qualifying benefits,
as if references to winding up the scheme, or to the scheme being wound up, were to ceasing to operate the scheme, or the scheme ceasing to operate, to the extent that it provides qualifying benefits.
(4) Regulations made by the Department may make provision to the effect that, for the purposes of any specified provisions of this Part, a reference in this Part to a collective money purchase scheme includes a scheme that—
(a) is in the process of being wound up, and
(b) was a collective money purchase scheme immediately before the beginning of that process.
“Specified” here means specified in the regulations.
(5) Regulations under subsection (2) or (4) are subject to confirmatory procedure.
(1) A power of the Department to make regulations under this Part is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).
(2) A power to make regulations under this Part may be used—
(a) to make different provision for different purposes;
(b) to make provision in relation to all or only some of the purposes for which it may be used.
(3) Regulations under this Part may—
(a) confer a discretion on a person;
(b) make consequential, supplementary or incidental provision;
(c) make transitional, transitory or saving provision.
(4) Where regulations under this Part are subject to “negative resolution”, they are subject to negative resolution within the meaning given in section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).
(5) Where regulations under this Part are subject to “confirmatory procedure”—
(a) they must be laid before the Northern Ireland Assembly after being made, and
(b) they take effect on such date as may be specified in the regulations, but (without prejudice to the validity of anything done under the regulations or to the making of new regulations) cease to have effect on the expiration of the period of six months beginning with that date unless at some time before the expiration of that period the regulations are approved by resolution of the Northern Ireland Assembly.
(6) Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies in relation to the laying of regulations under this Part as it applies in relation to the laying of a statutory document under an enactment.
(7) Any provision that may be made by regulations under this Part subject to negative resolution may be made by regulations subject to confirmatory procedure.
103 Grounds for issuing a section 38 contribution notice
(1) The Pensions Act 2004 is amended as follows.
(2) In section 38 (contribution notices where avoidance of employer debt)—
(a) in subsection (5)(a)—
(i) after “test” insert “ , the employer insolvency test or the employer resources test ”;
(ii) for “section 38A)” substitute “ sections 38A, 38C and 38E) ”;
(b) in subsection (12)(c), after “test” insert “ , the employer insolvency test or the employer resources test ”.
(3) After section 38B insert—
Section 38 contribution notice: meaning of “employer insolvency test”
38C (1) For the purposes of section 38 the employer insolvency test is met in relation to an act or failure to act if the Regulator is of the opinion that—
(a) immediately after the relevant time, the value of the assets of the scheme was less than the amount of the liabilities of the scheme, and
(b) if a debt under section 75(4) of the Pensions Act 1995 (deficiencies in scheme assets: employer insolvency etc) had fallen due from the employer to the scheme immediately after the relevant time, the act or failure would have materially reduced the amount of the debt likely to be recovered by the scheme.
(2) For the purposes of subsection (1)—
(a) the value of the assets of the scheme immediately after the relevant time is the value which the Regulator estimates to be their value,
(b) the amount of the liabilities of the scheme immediately after the relevant time is the amount which the Regulator estimates to be the amount of those liabilities, and
(c) the amount of the debt is the amount which the Regulator estimates to be the amount of the debt under section 75(4) of the Pensions Act 1995 that would have fallen due immediately after the relevant time.
(3) When estimating the value and the amounts referred to in subsection (2), the Regulator must take into account how assets and liabilities, and their value or amount, are determined and calculated for the purposes of section 75(4) of the Pensions Act 1995.
(4) When estimating—
(a) the value of the assets of the scheme immediately after the relevant time, and
(b) the amount of the debt under section 75(4) of the Pensions Act 1995 falling due immediately after the relevant time,
the Regulator must disregard the amount of any debt due immediately after the relevant time from the employer under section 75 of the Pensions Act 1995.
(5) In this section “the relevant time” means—
(a) in the case of an act, the time of the act, or
(b) in the case of a failure to act—
(i) the time when the failure occurred, or
(ii) where the failure continued for a period of time, the time which the Regulator determines and which falls within that period;
and, in the case of acts or failures to act forming part of a series, any reference in this subsection to an act or failure to act is a reference to the last of the acts or failures in that series.
Section 38 contribution notice issued by reference to employer insolvency test: defence
38D (1) This section applies where—
(a) a warning notice is given to any person (“P”) 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 employer insolvency test is met in relation to an act or deliberate failure to act to which P was a party.
(2) If the Regulator is satisfied that P has shown that—
(a) conditions A and C are met, and
(b) where applicable, condition B is met,
the Regulator must not issue the contribution notice by reference to its being of the opinion mentioned in subsection (1)(b).
(3) If the Regulator is satisfied that P or another person has shown that condition D is met, the Regulator must not issue the contribution notice by reference to its being of the opinion mentioned in subsection (1)(b).
(4) Condition A is that, before becoming a party to the act or failure, P gave due consideration to the extent to which, if a debt under section 75(4) of the Pensions Act 1995 were to fall due from the employer to the scheme—
(a) immediately after the act or failure, or
(b) where the failure might continue for a period of time, at any time within that period,
the act or failure might materially reduce the amount of the debt likely to be recovered by the scheme.
(5) Condition B is that, in any case where as a result of that consideration P considered that the act or failure might have such an effect, P took all reasonable steps to eliminate or minimise the potential for the act or failure to have such an effect.
(6) Condition C is that, having regard to all relevant circumstances prevailing at the time of the act or at the time when the failure to act first occurred, it was reasonable for P to conclude that, if a debt under section 75(4) of the Pensions Act 1995 were to fall due from the employer to the scheme—
(a) immediately after the act or failure, or
(b) where the failure might continue for a period of time, at any time within that period,
the act or failure would not materially reduce the amount of the debt likely to be recovered by the scheme.
(7) Condition D is that, immediately after the relevant time, the value of the assets of the scheme equalled or was more than the amount at that time of the liabilities of the scheme.
(8) P is to be regarded as giving the consideration mentioned in condition A only if P has made the enquiries, and done the other acts, that a reasonably diligent person would have made or done in the circumstances.
(9) For the purposes of condition C the reference to the circumstances mentioned in that condition is a reference to those circumstances of which P was aware, or ought reasonably to have been aware, at the time of the act or the time when the failure to act first occurred (including acts or failures to act which have occurred before that time and P's expectation at that time of other acts or failures to act occurring).
(10) For the purposes of conditions A, C and D the amount of any debt due at the time in question from the employer under section 75 of the Pensions Act 1995 is to be disregarded.
(11) In the case of acts or failures to act forming part of a series, P is to be regarded as having shown the matters mentioned in subsection (2) if P shows in the case of each of the acts or failures in the series that—
(a) conditions A and C are met, and (where applicable) condition B is met, in relation to the act or failure, or
(b) the act or failure was one of a number of acts or failures (a “group” of acts or failures) selected by P in relation to which the following matters are shown.
(12) The matters to be shown are that—
(a) before becoming a party to the first of the acts or failures in the group, condition A is met in relation to the effect of the acts or failures in the group taken together,
(b) condition B is (where applicable) met in relation to that effect, and
(c) condition C is then met in relation to each of the acts or failures in the group (determined at the time at which each act or failure concerned occurred or first occurred).
(13) If at any time P considers that condition C will not be met in relation to any particular act or failure in the group—
(a) the previous acts or failures in the group are to be regarded as a separate group for the purposes of subsection (11), and
(b) P may then select another group consisting of the particular act or failure concerned, and any subsequent act or failure, in relation to which P shows the matters mentioned in subsection (12).
Nothing in paragraph (b) is to be read as preventing P from showing the matters mentioned in subsection (11)(a).
(14) If—
(a) P is unable to show in the case of each of the acts or failures in the series that the matters set out in subsection (11)(a) or (b) are met, but
(b) does show in the case of some of them that those matters are met,
the acts or failures within paragraph (b) are not to count for the purposes of section 38C as acts or failures to act in the series.
(15) In this section—
(a) “the relevant time” has the meaning given by section 38C;
(b) “a warning notice” means a notice given as mentioned in section 96(2)(a);
(c) a reference to a party to an act or failure to act includes a reference to a person who knowingly assists in the act or failure.
(4) After section 38D (inserted by subsection (3)) insert—
Section 38 contribution notice: meaning of “employer resources test”
38E (1) For the purposes of section 38 the employer resources test is met in relation to an act or failure to act if the Regulator is of the opinion that—
(a) the act or failure reduced the value of the resources of the employer, and
(b) that reduction was a material reduction relative to the estimated section 75 debt in relation to the scheme.
(2) For the purposes of this section—
(a) what constitutes the resources of the employer is to be determined in accordance with regulations;
(b) the value of the resources of the employer is to be determined, calculated and verified in a prescribed manner.
(3) In this section the “estimated section 75 debt” means the amount which the Regulator estimates to be the amount of the debt which would become due from the employer to the trustees or managers of the scheme under section 75 of the Pensions Act 1995 (deficiencies in the scheme assets) if—
(a) section 75(2) applied, and
(b) the time designated by the trustees or managers of the scheme for the purposes of section 75(2) were the relevant time.
(4) When calculating the estimated section 75 debt under subsection (3), the amount of any debt due at the relevant time from the employer under section 75 of the Pensions Act 1995 is to be disregarded.
(5) In this section “the relevant time” means—
(a) in a case where the act or failure to act forms part of a series of acts or failures to act, the time immediately before the first of the acts occurred or the first of the failures to act first occurred;
(b) in any other case, the time immediately before the act occurred or the failure to act first occurred.
Section 38 contribution notice issued by reference to employer resources test: defence
38F (1) This section applies where—
(a) a warning notice is given to any person (“P”) 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 employer resources test is met in relation to an act or deliberate failure to act to which P was a party.
(2) If the Regulator is satisfied that P has shown that—
(a) conditions A and C are met, and
(b) where applicable, condition B is met,
the Regulator must not issue the contribution notice by reference to its being of the opinion mentioned in subsection (1)(b).
(3) Condition A is that, before becoming a party to the act or failure, P gave due consideration to the extent to which the act or failure might reduce the value of the resources of the employer relative to the estimated section 75 debt in relation to the scheme.
(4) Condition B is that, in any case where as a result of that consideration P considered that the act or failure might have such an effect, P took all reasonable steps to eliminate or minimise the potential for the act or failure to have such an effect.
(5) Condition C is that, having regard to all relevant circumstances prevailing at the time of the act or at the time when the failure to act first occurred, it was reasonable for P to conclude that the act or failure would not bring about a reduction in the value of the resources of the employer that would be a material reduction relative to the estimated section 75 debt in relation to the scheme.
(6) P is to be regarded as giving the consideration mentioned in condition A only if P has made the enquiries, and done the other acts, that a reasonably diligent person would have made or done in the circumstances.
(7) For the purposes of condition C the reference to the circumstances mentioned in that condition is a reference to those circumstances of which P was aware, or ought reasonably to have been aware, at the time of the act or the time when the failure to act first occurred (including acts or failures to act which have occurred before that time and P's expectation at that time of other acts or failures to act occurring).
(8) For the purposes of conditions A and C—
(a) the “estimated section 75 debt” means the amount which is a reasonable estimate of the amount of the debt which would become due from the employer to the trustees or managers of the scheme under section 75 of the Pensions Act 1995 (deficiencies in the scheme assets) if—
(i) section 75(2) applied, and
(ii) the time designated by the trustees or managers of the scheme for the purposes of section 75(2) were the time immediately before the act occurred or the failure to act first occurred;
(b) the amount of any debt due at the time in question from the employer under section 75 of the Pensions Act 1995 is to be disregarded.
(9) In the case of acts or failures to act forming part of a series, P is to be regarded as having shown the matters mentioned in subsection (2) if P shows in the case of each of the acts or failures in the series that—
(a) conditions A and C are met, and (where applicable) condition B is met, in relation to the act or failure, or
(b) the act or failure was one of a number of acts or failures (a “group” of acts or failures) selected by P in relation to which the following matters are shown.
(10) The matters to be shown are that—
(a) before becoming a party to the first of the acts or failures in the group, condition A is met in relation to the effect of the acts or failures in the group taken together,
(b) condition B is (where applicable) met in relation to that effect, and
(c) condition C is then met in relation to each of the acts or failures in the group (determined at the time at which each act or failure concerned occurred or first occurred).
(11) If at any time P considers that condition C will not be met in relation to any particular act or failure in the group—
(a) the previous acts or failures in the group are to be regarded as a separate group for the purposes of subsection (9), and
(b) P may then select another group consisting of the particular act or failure concerned, and any subsequent act or failure, in relation to which P shows the matters mentioned in subsection (10).
Nothing in paragraph (b) is to be read as preventing P from showing the matters mentioned in subsection (9)(a).
(12) If—
(a) P is unable to show in the case of each of the acts or failures in the series that the matters set out in subsection (9)(a) or (b) are met, but
(b) does show in the case of some of them that those matters are met,
the acts or failures within paragraph (b) are not to count for the purposes of section 38E as acts or failures to act in the series.
(13) In this section—
(a) section 38E(2) (the resources of the employer and their value) has effect for the purpose of this section as it has effect for the purposes of section 38E;
(b) “a warning notice” means a notice given as mentioned in section 96(2)(a);
(c) a reference to a party to an act or failure to act includes a reference to a person who knowingly assists in the act or failure.
104 Reasonableness of issuing a contribution notice
(1) Section 38 of the Pensions Act 2004 (contribution notices where avoidance of employer debt) is amended as follows.
(2) In subsection (7) (matters that may be relevant to imposing liability), after paragraph (d) insert—
(da) if the act or failure to act was a notifiable event for the purposes of section 69A (duty to give notices and statements to the Regulator in respect of certain events), any failure by the person to comply with any obligation imposed on the person by section 69A,
.
(3) In subsection (7), after paragraph (eb) insert—
(ec) the effect of the act or failure to act on the value of the assets or liabilities of the scheme or any relevant transferee scheme,
.
(4) After subsection (7A) insert—
(7B) In subsection (7)(ec) “relevant transferee scheme” and the reference to the assets or liabilities of any relevant transferee scheme have the same meaning as in section 38A.
105 Determination of sum specified in a contribution notice
(1) Section 39 of the Pensions Act 2004 (the sum specified in a section 38 contribution notice) is amended as follows.
(2) For subsection (4) substitute—
(4) For the purposes of this section “the relevant time” means the end of the scheme year which ended most recently before the day on which the Regulator gives a determination notice under section 96(2)(d) in respect of an intended contribution notice under section 38.
(3) Omit subsection (4A).