Developments in Employee Benefits law and practice

29 May 2018

TPR will use powers, schemes warned

A report published last week shows how The Pensions Regulator (TPR) used clear and robust negotiation to secure millions of pounds for pension savers.

TPR’s latest quarterly compliance and enforcement bulletin includes an example of where the regulator used its enforcement powers to safeguard member benefits.

The report outlines the case of a global company which agreed to pay £3 million into its defined benefit (DB) pension scheme after TPR opened an anti-avoidance investigation because of concerns that members’ pensions were being put at risk.

TPR’s Executive Director of Frontline Regulation, Nicola Parish, said: “We are working to be a clearer, quicker and tougher regulator. Very often, being clear that we are fully prepared to use our powers gets employers and trustees to the table and means members are safeguarded more quickly. Several cases are resolved thanks to clear and robust negotiation by our case teams and the early engagement of companies and trustees.”

The bulletin for January to March 2018 (link below) also details the use of TPR’s powers to ensure employers meet their automatic enrolment pension duties.

Due to the expected high volume of employers who reached their staging date last autumn, the number of times TPR used its powers in this quarter makes up 20% of all the powers used since the start of automatic enrolment.

TPR’s Director of Automatic Enrolment, Darren Ryder, said: “Huge numbers of employers are starting their workplace pensions duties every month and the vast majority are successfully meeting their duties. However, where an employer fails to do the right thing for their staff, we will take action using the wide range of powers available to us.”

The bulletin highlights:

Automatic enrolment

  • A total of 35,862 enforcement powers were used between January and March 2018 compared to 28,446 the previous quarter.
  • 3,721 more fixed penalty notices were issued this quarter compared to last quarter.
  • 2,037 more compliance notices were issued this quarter compared to last quarter.
  • 431 more unpaid contribution notices were issued this quarter compared to last quarter.

Pension schemes

  • For the first time, TPR:
    • used its powers under section 16 of the Pensions Act to obtain a court order requiring four scammers to pay back the money they had taken from the pension schemes
    • fined a professional trustee for failing to maintain registrable information
  • TPR used its powers to enforce governance and administration rules against schemes 62 times between January and March. These include Mandatory Penalty Notices for failing to produce a chair’s statement, submitting a non compliant chair’s statement and failure to complete a scheme return on time.
  • TPR used its information gathering powers 45 times.
  • There were 105 trustees appointed by TPR to run schemes to protect members’ benefits.

TPR’s latest quarterly compliance and enforcement bulletin can be view at:
http://www.thepensionsregulator.gov.uk/docs/compliance-and-enforcement-quarterly-bulletin-january-to-march-2018.pdf

TPR issues first fine for out of date scheme information

The Pensions Regulator (TPR) has fined a scheme after it failed to notify the regulator it had appointed a professional trustee, in the first instance of a penalty being levied for this reason.

A total fine of £3,300 was issued to the unnamed scheme - with £3,000 liable to the professional trustee - when, in the course of communication with the scheme, the watchdog became aware the trustee had been appointed eight months prior without notification.

After using a section 72 notice, the regulator decided to enforce against the scheme's three lay trustees and the professional trustee under section 62 of the Pensions Act, with the watchdog's Determinations Panel awarding the fines. While the panel did not conclude if there was any lack of integrity, it did note "their failure to update the registrable information was apparently due to concerns over other possible penalties".

The penalty was revealed in the regulator's latest quarterly enforcement and compliance bulletin, published on 26 May and covering the regulator's enforcement activities for the first quarter of this year – as detailed above.

PPF appoints Chief Risk Officer and Head of ESG

The Pension Protection Fund (PPF) has confirmed that Stephen Wilcox has joined the organisations as its new Chief Risk Officer. Stephen will be responsible for all the PPF’s risk functions.

Stephen brings over 20 years of actuarial and risk management experience to the PPF, having previously held the role of Chief Risk Officer at Allianz Insurance, one of the UK’s leading general insurers. With Allianz he successfully set up the first comprehensive risk team and implemented its approach to Solvency II. A Fellow of the Institute of Actuaries and a Chartered Enterprise Risk Actuary, he continues to be active in the actuarial profession.

Stephen Wilcox replaces Hans den Boer who left the PPF after three years of service.

The Pension Protection Fund (PPF) has also appointed Claire Curtin as its Head of environmental, social and corporate governance (ESG).  The appointment marks the continued evolution of one of Europe’s largest and most important institutional investors, dedicated to appropriately managing £30billion of assets under management.

Claire has joined the award-winning investment team to support the PPF’s ambitions to further develop and implement its Responsible Investment strategy. Claire will contribute to management of long-term risks, and to the achievement of long-term sustainable investment returns, by aligning the PPF’s investment portfolio with the consideration of environmental, social and corporate governance (ESG) factors.

Claire is a highly experienced investment specialist professional, with extensive technical knowledge obtained through over 17 years of experience within financial services and ESG research. Her previous roles have included Head of Research, Financial Institutions at Trucost, Client Relationship Manager at EIRIS and VP, Head of Investment Communications, Single Manager Funds at Pioneer Investments.

SIPP claimants may face FSCS payments clawback

The Financial Services Compensation Service (FSCS) may consider reclaiming compensation paid out to consumers with regards to self-invested personal pension providers, should courts arrive at a contrasting ruling to its own decisions.

Referring to two separate cases involving Self Invested Personal Pensions (SIPPs) offered by Carey Pensions and Berkeley Burke, James Darbyshire, general counsel at the FSCS, told the Association of Member-Directed Pension Schemes conference that the lifeboat scheme may pay out before a judgment is reached, and needs to retrieve money. When the courts are unable to provide guidance, he said the FSCS may have to take its own view.

Further details of these and similar cases can be found at the following link:
https://www.ftadviser.com/personal-pension/2018/05/22/sipp-claimants-may-face-fscs-payments-clawback/

Data Protection Act 2018 becomes law

Less than two days before the General Data Protection Regulation (GDPR) came into force on 25 May 2018, the Data Protection Bill (the “Bill”) passed into law.

Since its first reading in the House of Lords on 13 September 2017, the Bill has been debated by both the House of Lords and the House of Commons with the last reading by the House of Lords taking place on 21 May 2018. With both Houses agreeing the text of the Bill, from 23 May 2018, the Bill enters into force in the United Kingdom as the Data Protection Act 2018.

Trustees should already have taken action to ensure they are GDPR compliant. For example, they should have issued privacy notices, finalised a data strategy policy, confirmed the legal basis for processing personal data, added GDPR to risk registers and ensured they have GDPR complaint contracts in place with all their data processors.

Fines for breaches of the GDPR are much greater than was the case previously, when the Information Commissioner’s Office (ICO) only had the ability to fine up to a maximum of £500,000. Now the ICO is able to impose fines of up to the higher of:

  • 4% of annual global turnover; and
  • €20 million

There is no period of grace for compliance with GDPR, but where trustees have taken some steps to comply with their GDPR requirements, they are likely to be in a better position if something goes wrong than those who have done nothing at all.

The full text of the Data Protection Act 2018 can be found at:
http://www.legislation.gov.uk/ukpga/2018/12/pdfs/ukpga_20180012_en.pdf

Contact:

John W. Wilson LLB(Hons) FPMI ACII, Head of Research| Email: john_wilson@jltgroup.com

Stephen Williams, Senior Research Consultant | Email: stephen_williams@jltgroup.com