As promised, The Pensions Regulator (TPR) has been raising its voice since publishing its 2018-2021 corporate plan setting out how it will be “more vocal” in its “clearer, quicker and tougher approach” to driving up standards in the pensions sector. Our blog examines TPR’s recent activity.
TPR’s Chairman Mark Boyle said: “The pensions landscape has been changing significantly. We are meeting this challenge by embedding a new regulatory culture and reinforcing our regulatory teams on the frontline. In the coming year, you can expect to see us being more vocal about our expectations of those we regulate and intervening quickly and decisively through our wide-ranging regulatory activity and enforcement powers so that workplace pension schemes are run properly and people can save safely for retirement.”
TPR hasn’t exactly been sitting on its laurels – according to its annual report for 2017-18, TPR issued 36,137 fines for non-compliance during that year alone. (We have examined some of these instances in our earlier blogs “Watch out Rumpelstiltskin” and “But sir, my dog ate the scheme accounts!”) However, since publishing its corporate plan, TPR has exercised its vocal cords on a number of occasions.
Crying out about valuations
In July 2018, TPR published details of a fine issued to the Trustee of a scheme for failing to complete two actuarial valuations on time. The fine of £25,000 was the highest that could be levied on the Trustee under band 2 (medium severity) of TPR’s monetary penalties policy.
In this case, the Trustee failed to complete the Scheme’s 2012 and 2015 actuarial valuations by their statutory deadlines (July 2013 and July 2016 respectively). TPR had been informed by the Trustee that the reason for the delay in completing both valuations was a planned merger with a separate pension scheme run by the scheme’s sponsoring employer. TPR advised the Trustee that a proposed merger was not a valid justification for failing to comply with the statutory deadlines.
TPR decided to take formal action issuing a Determination Notice when the proposed merger failed to happen and the valuations still had not been submitted by the end of 2017. In addition, TPR issued an Improvement Notice to the Trustee and a Third Party Notice to the sponsoring employer, which required both outstanding valuations to be submitted to TPR by the end of May. Both valuations were received within TPR’s deadline.
Nicola Parish Executive Director of Frontline Regulation commented: “The behaviours in this case were so severe that, not only did we issue Improvement Notices, we also recommended to the Determinations Panel that a fine should be imposed at a level that would be likely to improve behaviours in the future and be an effective deterrent for other trustees.”
A “tiresome” tirade?
Another example of TPR baring its teeth occurred on 30 July 2018 when it successfully brought criminal proceedings against a brewery and its chairman.
The brewery and its chairman were fined almost £30,000 (£18,850 and £8,000 respectively and ordered to pay costs and victim surcharges of £1,240) following their conviction at Brighton Magistrates’ Court for failing to provide information to TPR without a reasonable excuse.
Following submission of the 2015 valuations for some of the brewery’s final salary pension schemes, TPR asked for financial information from the brewery to seek assurances the schemes could be financially supported.
The chairman dismissed TPR’s request: “We are in receipt of your tiresome letter and we are not prepared to divulge the information to your organisation.” The brewery failed to provide the information by the deadline set in TPR’s statutory request issued under Section 72 of the Pensions Act 2004 (“Section 72”). This is the sixth criminal conviction of its type secured by TPR.
TPR roared its response and launched court proceedings, accusing the brewery of neglecting or refusing to provide information and documents without a reasonable excuse in breach of Section 72. The chairman was charged with the same offence on the basis that, as owner and chairman of the brewery, he consented or connived in failing to hand over the documents (under Section 309 of the Pensions Act 2004).
These two cases highlight TPR’s stance as a clearer, quicker and tougher regulator and its willingness to take action against trustees and employers alike, including where necessary, pursuing criminal convictions. In addition, TPR’s powers may be further strengthened if the suggested changes set out in the DWP’s “Protecting Defined Benefit Pension Schemes – A Stronger Pensions Regulator” consultation document (issued in June) come to fruition. In it, the DWP proposes increasing the maximum TPR civil fine from £50,000 for a corporate body and £5,000 for an individual to £1 million. The consultation also introduces new criminal sanctions to punish “wilful or grossly reckless behaviour”.
It is now clear that when TPR said that it was about to become “more vocal” it was not planning to establish a staff choir (or even a barbershop quartet).