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STATUTORY INSTRUMENTS
2005 No. 255 (N.I. 1)
NORTHERN IRELAND
The Pensions (Northern Ireland) Order 2005
Made
9th February 2005
Laid
21st February 2005
Coming into operation in accordance with Article 1
At the Court at Buckingham Palace, the 9th day of February 2005
Present,
The Queen's Most Excellent Majesty in Council
Whereas this Order in Council is made only for purposes corresponding to the purposes of the Pensions Act 2004 (c. 35):
Now, therefore, Her Majesty, in exercise of the powers conferred by paragraph 1(1) of the Schedule to the Northern Ireland Act 2000 (c.1) (as modified by section 324 of the said Act of 2004) and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows: -
PART I
INTRODUCTORY
Title and commencement 1.
- (1) This Order may be cited as the Pensions (Northern Ireland) Order 2005.
(2) Subject to paragraphs (3) to (5), the provisions of this Order shall come into operation on such day or days as the Department may by order appoint.
(3) The following provisions shall come into operation on the expiration of seven days from the day on which this Order is made -
(a) this Article and Article 2 (other than paragraphs (5) and (6));
(b) in Part V, Article 213 (supply of housing benefit information);
(c) in Part VI, Article 258 (exemption from statutory revaluation requirement);
(d) in Part VIII -
(i) Article 272 (persons entitled to more than one Category B retirement pension),
(ii) Article 273(3) (commencement of amendments of state pension deferment provisions made by the 1995 Order), and
(iii) Article 274 (disclosure of state pension information), except paragraphs (4) and (5)(b);
(e) in Part IX (miscellaneous and supplementary) -
(i) Articles 277 and 278 (electronic working), and
(ii) Articles 285, 287 (other than paragraph (4)), 288 and 289;
(f) the repeal by this Order of Article 47(2) of the 1999 Order.
(4) Article 273 (and Schedule 9 (deferral of retirement pensions and shared additional pensions), other than the provisions coming into operation in accordance with paragraph (3) -
(a) shall come into operation on the expiration of seven days from the day on which this Order is made so far as is necessary for enabling the making of any regulations for which they provide, and
(b) otherwise, shall come into operation on 6th April 2005.
(5) The repeals by this Order of Article 131(3) of, and paragraph 18(13) and (14) of Schedule 2 to, the 1995 Order shall come into operation on 6th April 2005.
(6) Without prejudice to Article 287(3), the power to make an order under this Article includes power -
(a) to make transitional adaptations or modifications -
(i) of the provisions brought into operation by the order, or
(ii) in connection with those provisions, of any provisions of Parts II to VII of this Order, the Pension Schemes Act, the 1995 Order, Parts II, III or V of the 1999 Order or Chapter 2 of Part II of the 2000 Act, or
(b) to save the effect of any of the repealed provisions of any of those statutory provisions, or those provisions as adapted or modified by the order,
as it appears to the Department expedient, including different adaptations or modifications for different periods.
Interpretation
General interpretation 2.
- (1) The Interpretation Act (Northern Ireland) 1954 (c. 33) applies to this Order as it applies to an Act of the Assembly.
(2) In this Order, unless the context otherwise requires -
"the 1995 Order" means the Pensions (Northern Ireland) Order 1995 (NI 22);
"the 1999 Order" means the Welfare Reform and Pensions (Northern Ireland) Order 1999 (NI 11);
"the 2000 Act" means the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4);
"active member" has the meaning given by Article 121(1) of the 1995 Order;
"the Board" means the Board of the Pension Protection Fund;
"the Companies Order" means the Companies (Northern Ireland) Order 1986 (NI 6);
"the Contributions and Benefits Act" means the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (c. 7);
"the Department" means the Department for Social Development;
"the Determinations Panel" means the committee established by the Regulator under section 9 of the Pensions Act 2004 (c. 35);
"direct payment arrangements", in relation to a personal pension scheme, has the same meaning as in section 107A of the Pension Schemes Act;
"earnings" has the meaning given by section 176(1) of the Pension Schemes Act;
"employee" has the meaning given by section 176(1) of the Pension Schemes Act;
"employer" -
(a) in relation to an occupational pension scheme, means the employer of persons in the description of employment to which the scheme in question relates (but see paragraph (5)), and
(b) in relation to a personal pension scheme, where direct payment arrangements exist in respect of one or more members of the scheme who are employees, means an employer with whom those arrangements exist;
"enactment" includes any statutory provision;
"government department" means a Northern Ireland department or a department of the government of the United Kingdom;
"the Insolvency Order" means the Insolvency (Northern Ireland) Order 1989 (NI 19);
"managers", in relation to an occupational or personal pension scheme (other than a scheme established under a trust), means the persons responsible for the management of the scheme;
"member", in relation to an occupational pension scheme, means any active, deferred, pensioner or pension credit member within the meaning of Article 121(1) of the 1995 Order (but see paragraph (6));
"modifications" includes additions, omissions and amendments;
"money purchase benefit" has the meaning given by section 176(1) of the Pension Schemes Act;
"money purchase scheme" has the meaning given by section 176(1) of the Pension Schemes Act;
"occupational pension scheme" has the meaning given by section 1 of the Pension Schemes Act;
"pension credit" has the meaning given by Article 121(1) of the 1995 Order;
"the Pension Schemes Act" means the Pension Schemes (Northern Ireland) Act 1993 (c. 49);
"personal pension scheme" has the meaning given by section 1 of the Pension Schemes Act;
"the PPF Ombudsman" means the Ombudsman for the Board of the Pension Protection Fund;
"prescribed" means prescribed by regulations;
"professional adviser", in relation to an occupational pension scheme, has the meaning given by Article 47 of the 1995 Order;
"regulations" means regulations made by the Department;
"the Regulator" means the Pensions Regulator;
"statutory provision" has the meaning given by section 1(f) of the Interpretation Act (Northern Ireland) 1954 (c. 33);
"the Tribunal" means the Pensions Regulator Tribunal.
(3) In this Order, unless the context otherwise requires, references to the scheme rules, in relation to an occupational pension scheme, are references to -
(a) the rules of the scheme, except so far as overridden by a relevant legislative provision,
(b) the relevant legislative provisions, to the extent that they have effect in relation to the scheme and are not reflected in the rules of the scheme, and
(c) any provision which the rules of the scheme do not contain but which the scheme must contain if it is to conform with the requirements of Chapter 1 of Part IV of the Pension Schemes Act (preservation of benefit under occupational pension schemes).
(4) For the purposes of paragraph (3) -
(a) "relevant legislative provision" means any provision contained in any of the following provisions -
(i) Schedule 5 to the Social Security (Northern Ireland) Order 1989 (NI 13) (equal treatment for men and women);
(ii) Chapters 2 to 5 of Part IV of the Pension Schemes Act (certain protection for early leavers) or regulations made under any of those Chapters;
(iii) Part IVA of that Act (requirements relating to pension credit benefit) or regulations made under that Part;
(iv) section 106(1) of that Act (requirement as to resources for annual increase of guaranteed minimum pensions);
(v) Part II of the 1995 Order (occupational pensions) or orders or regulations made or having effect as if made under that Part;
(vi) Article 28 of the 1999 Order (pension debits: reduction of benefit);
(vii) any provision mentioned in Article 279(2);
(b) a relevant legislative provision is to be taken to override any of the provisions of the scheme if, and only if, it does so by virtue of any of the following provisions -
(i) paragraph 3 of Schedule 5 to the Social Security (Northern Ireland) Order 1989;
(ii) section 125(1) of the Pension Schemes Act;
(iii) Article 114(1) of the 1995 Order;
(iv) Article 28(4) of the 1999 Order;
(v) Article 279(1).
(5) Regulations may, in relation to occupational pension schemes, extend for the purposes of this Part and Parts II, III and V to VII the meaning of "employer" to include -
(a) persons who have been the employer in relation to the scheme;
(b) such other persons as may be prescribed.
(6) Regulations may for any purpose of any provision of this Order -
(a) prescribe the persons who are to be regarded as members or prospective members of an occupational or personal pension scheme, and
(b) make provision as to the times at which and circumstances in which a person is to be treated as becoming, or as ceasing to be, such a member or prospective member.
(7) In the application, for the purposes of this Order, of -
(a) section 24(1) of the Interpretation Act (Northern Ireland) 1954 (c. 33) (service of documents by post) omit the word "registering";
(b) section 39(2) of that Act (time beginning on a particular day), omit the word "not".
PART II
THE PENSIONS REGULATOR
General provisions about functions
Regulator's functions 3.
- (1) The Regulator has -
(a) the functions transferred to it from the Occupational Pensions Regulatory Authority by virtue of this Order, and
(b) any other functions conferred by, or by virtue of, this or any other statutory provision.
(2) Schedule 1 makes further provision about the Regulator.
(3) As regards the exercise of the Regulator's functions -
(a) the functions mentioned in the following provisions are exercisable only by the Determinations Panel -
(i) Article 7(1) (the power in certain circumstances to determine whether to exercise the functions listed in Schedule 2 and to exercise them), and
(ii) Article 94(10) (the functions concerning the compulsory review of certain determinations), and
(b) the exercise of other functions of the Regulator (except the non-executive functions which are exercised in accordance with section 4(2)(a) of the Pensions Act 2004 (c. 35) and functions which are delegated in accordance with section 4(2)(c) of that Act) may be delegated by the Regulator under paragraph 1 of Schedule 1.
(4) Paragraph (3) is subject to any regulations made by the Department under paragraph 2 of Schedule 1 (power to limit or permit delegation of functions).
Regulator's objectives 4.
- (1) The main objectives of the Regulator in exercising its functions are -
(a) to protect the benefits under occupational pension schemes of, or in respect of, members of such schemes,
(b) to protect the benefits under personal pension schemes of, or in respect of, members of such schemes within paragraph (2),
(c) to reduce the risk of situations arising which may lead to compensation being payable from the Pension Protection Fund (see Part III), and
(d) to promote, and to improve understanding of, the good administration of work-based pension schemes.
(2) For the purposes of paragraph (1)(b) the members of personal pension schemes within this paragraph are -
(a) the members who are employees in respect of whom direct payment arrangements exist, and
(b) where the scheme is a stakeholder pension scheme, any other members.
(3) In this Article -
"stakeholder pension scheme" means a personal pension scheme which is or has been registered under Article 4 of the 1999 Order (register of stakeholder schemes);
"work-based pension scheme" means -
(a) an occupational pension scheme,
(b) a personal pension scheme where direct payment arrangements exist in respect of one or more members of the scheme who are employees, or
(c) a stakeholder pension scheme.
Supplementary powers 5.
The Regulator may do anything (except borrow money) which -
(a) is calculated to facilitate the exercise of its functions, or
(b) is incidental or conducive to their exercise.
Transfer of OPRA's functions to the Regulator 6.
- (1) Subject to the provisions of this Order, the functions of the Occupational Pensions Regulatory Authority ("OPRA") conferred by or by virtue of -
(a) the Pension Schemes Act,
(b) the 1995 Order, and
(c) the 1999 Order,
are hereby transferred to the Regulator.
(2) Accordingly -
(a) in section 176(1) of the Pension Schemes Act (which defines "the Regulatory Authority" to mean OPRA), for the definition of "the Regulatory Authority" substitute -
"
"the Regulatory Authority" means the Pensions Regulator;",
(b) in Article 121(1) of the 1995 Order (which defines "the Authority", in Part II of that Order, to mean OPRA), for the definition of "the Authority" substitute -
"
"the Authority" means the Pensions Regulator;",
(c) in Article 9(1) of the 1999 Order (which defines "the Authority", in Part II of that Order, to mean OPRA), for the definition of "the Authority" substitute -
"
"the Authority" means the Pensions Regulator;", and
(d) in Article 30 of that Order (time for discharge of pension credit liability), in paragraph (5) for "the Occupational Pensions Regulatory Authority" substitute "the Pensions Regulator".
The Determinations Panel
Functions exercisable by the Determinations Panel 7.
- (1) The Determinations Panel is to exercise on behalf of the Regulator -
(a) the power to determine, in the circumstances described in paragraph (2), whether to exercise a reserved regulatory function, and
(b) where it so determines to exercise a reserved regulatory function, the power to exercise the function in question.
(2) Those circumstances are -
(a) where the Regulator considers that the exercise of the reserved regulatory function may be appropriate, or
(b) where an application is made under, or by virtue of, any of the provisions listed in paragraph (6) for the Regulator to exercise the reserved regulatory function.
(3) Where paragraph (1) applies, the powers mentioned in that paragraph are not otherwise exercisable by or on behalf of the Regulator.
(4) For the purposes of this Part, a function of the Regulator is a "reserved regulatory function" if it is a function listed in Schedule 2.
(5) Regulations may amend Schedule 2 by -
(a) adding any function of the Regulator conferred by, or by virtue of, this or any other statutory provision,
(b) omitting any such function, or
(c) altering the description of any such function contained in that Schedule.
(6) The provisions referred to in paragraph (2)(b) are -
(a) Article 16(10) (application to permit payments out of an account that is subject to a restraining order);
(b) Article 22(2) (application for order validating action taken in contravention of freezing order);
(c) Article 37(7) (application for the issue of a revised contribution notice under Article 37(9));
(d) Article 46(7) (application for the issue of a revised contribution notice under Article 46(9));
(e) Article 3(3) of the 1995 Order (application for revocation of prohibition order);
(f) Article 4(5) of that Order (application for revocation of a suspension order);
(g) Article 7(5A) of that Order (application for appointment of a trustee under Article 7(3)(a) or (c) of that Order);
(h) Article 29(5) of that Order (application for waiver of disqualification);
(i) Article 69(1) of that Order (application for order authorising modification or modifying a scheme);
(j) Article 71A(2) of that Order (application for modifying a scheme to secure winding up);
(k) section 95(4A) of the Pension Schemes Act (application for extension under section 95(4) of that Act of a period for compliance);
(l) section 97J(6)(a) of that Act (application for extension under section 97J(2) of that Act of a period for compliance).
(7) Regulations may amend paragraph (6) by -
(a) adding any provision of this or any other statutory provision to the list in that paragraph, or
(b) omitting or altering the description of any provision mentioned in that list.
(8) The Panel may be authorised under paragraph 1(3) or (5) of Schedule 1 to exercise further functions of the Regulator on behalf of the Regulator.
(9) The Panel may authorise any of its members or any of its sub-committees to exercise on its behalf -
(a) any of the functions of the Regulator which are exercisable by the Panel on behalf of the Regulator, or
(b) any of the functions of the Panel under Article 88(3) or 94(11) or paragraph 18(2) of Schedule 1 to the Pensions Act 2004 (c. 35) (procedure).
(10) This Article is subject to any regulations made by the Department under paragraph 2 of Schedule 1 (power to limit or permit delegation of functions).
Provision of information, education and assistance
Provision of information, education and assistance 8.
- (1) The Regulator may provide such information, education and assistance as it considers appropriate to those involved in -
(a) the administration of work-based pension schemes, or
(b) advising the trustees or managers in relation to such schemes as to their operation.
(2) To the extent that it is not authorised to do so under paragraph (1), the Regulator may also provide such information, education and assistance as it considers appropriate to -
(a) employers in relation to work-based pension schemes,
(b) persons involved in advising such employers as to the operation of such schemes, or
(c) persons upon whom duties are imposed by or by virtue of Article 215 (information and advice to employees).
(3) For the purposes of paragraph (2), "employers in relation to work-based pension schemes" means, in the case of stakeholder pension schemes, the persons upon whom duties are imposed by or by virtue of Article 5 of the 1999 Order (duty of employers to facilitate access to stakeholder pension schemes).
(4) In this Article -
"assistance" does not include financial assistance;
"stakeholder pension scheme" and "work-based pension scheme" have the same meaning as in Article 4 (Regulator's objectives).
New powers in respect of occupational and personal pension schemes
Improvement notices 9.
- (1) If the Regulator is of the opinion that a person -
(a) is contravening one or more provisions of the pensions legislation, or
(b) has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated,
it may issue a notice (an "improvement notice") to that person directing him to take, or refrain from taking, such steps as are specified in the notice in order to remedy or prevent a recurrence of the contravention.
(2) An improvement notice must -
(a) state that the Regulator is of that opinion and specify the provision or provisions of the pensions legislation in question,
(b) contain a statement of the matters which it is asserted constitute the contravention and of the evidence on which that opinion is based, and
(c) in respect of each step specified in the notice, state the period (being a period of not less than 21 days beginning with the date of the notice) within which it must be complied with.
(3) Directions in an improvement notice -
(a) may be framed to any extent by reference to a code of practice issued by the Regulator under Article 85, and
(b) may be framed so as to afford the person to whom the notice is issued a choice between different ways of remedying or preventing the recurrence of the contravention.
(4) Directions in an improvement notice may be expressed to be conditional on compliance by a third party with a specified direction, or specified directions, contained in a notice under Article 10 (third party notices).
(5) An improvement notice may direct the person to whom it is issued to inform the Regulator, within such period as may be specified in the notice, of how he has complied, or is complying, with the notice.
(6) Where a contravention of a provision of the pensions legislation consists of a failure to take action within a time limit, for the purposes of this Article the contravention continues until such time as the action is taken.
(7) In this Article "pensions legislation" means any statutory provision contained in or made by virtue of -
(a) the Pension Schemes Act,
(b) Part II of the 1995 Order, other than Articles 62 to 66A of that Order (equal treatment),
(c) Part II or Article 30 of the 1999 Order, or
(d) this Order.
(8) If the trustees or managers of an occupational or personal pension scheme fail to comply with an improvement notice issued to them, Article 10 of the 1995 Order (civil penalties) applies to any trustee or manager who has failed to take all reasonable steps to secure compliance.
(9) That Article also applies to any other person who, without reasonable excuse, fails to comply with an improvement notice issued to him.
Third party notices 10.
- (1) Where the Regulator is of the opinion that -
(a) a person -
(i) is contravening one or more provisions of the pensions legislation, or
(ii) has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated,
(b) the contravention is or was, wholly or partly, a result of a failure of another person ("the third party") to do any thing, and
(c) that failure is not itself a contravention of the pensions legislation,
the Regulator may issue a notice (a "third party notice") directing the third party to take, or refrain from taking, such steps as are specified in the notice in order to remedy or prevent a recurrence of his failure.
(2) A third party notice must -
(a) state that the Regulator is of that opinion and specify the provision or provisions of the pensions legislation in question,
(b) contain a statement of -
(i) the matters which it is asserted constitute the contravention of the provision or provisions, and
(ii) the matters which it is asserted constitute the failure by the third party,
and the evidence on which that opinion is based, and
(c) in respect of each step specified in the notice, state the period (being a period of not less than 21 days beginning with the date of the notice) within which it must be complied with.
(3) Directions in a third party notice may be framed so as to afford the third party a choice between different ways of remedying or preventing the recurrence of his failure.
(4) A third party notice may direct the third party to inform the Regulator, within such period as may be specified in the notice, of how he has complied, or is complying, with the notice.
(5) Where a contravention of a provision of the pensions legislation consists of a failure to take action within a time limit, for the purposes of this Article the contravention continues until such time as the action is taken.
(6) Article 10 of the 1995 Order (civil penalties) applies to a person who, without reasonable excuse, fails to comply with a third party notice issued to him.
(7) Subject to Article 283 (protected items), no duty to which a person is subject is to be regarded as contravened merely because of anything required to be done in compliance with a third party notice.
(8) In this Article "pensions legislation" has the same meaning as in Article 9.
Injunctions 11.
If, on the application of the Regulator, the High Court is satisfied that -
(a) there is a reasonable likelihood that a particular person will do any act which constitutes a misuse or misappropriation of any of the assets of an occupational or personal pension scheme, or
(b) a particular person has done any such act and there is a reasonable likelihood that he will continue or repeat the act in question or do a similar act,
the Court may grant an injunction restraining him from doing so.
Restitution 12.
- (1) If, on the application of the Regulator, the High Court is satisfied that there has been a misuse or misappropriation of any of the assets of an occupational or personal pension scheme, it may order any person involved to take such steps as the Court may direct for restoring the parties to the position in which they were before the misuse or misappropriation occurred.
(2) For this purpose a person is "involved" if he appears to the High Court to have been knowingly concerned in the misuse or misappropriation of the assets.
Power of the Regulator to recover unpaid contributions 13.
- (1) Where any employer contribution payable towards an occupational or personal pension scheme is not paid on or before its due date, the Regulator may, on behalf of the trustees or managers of the scheme, exercise such powers as the trustees or managers have to recover that contribution.
(2) For the purposes of paragraph (1), any employer contribution payable towards a personal pension scheme which is not paid on or before its due date is, if not a debt due from the employer to the trustees or managers apart from this paragraph, to be treated as if it were such a debt.
(3) In this Article -
"due date" -
(a) in relation to employer contributions payable towards an occupational pension scheme in accordance with a schedule of contributions under Article 206, has the same meaning as in Article 207,
(b) in relation to employer contributions payable in accordance with a payment schedule under Article 85 of the 1995 Order (schedules of payments to money purchase schemes), has the meaning given in paragraph (2)(c) of that Article, and
(c) in relation to employer contributions payable towards a personal pension scheme, has the same meaning as in section 107A of the Pension Schemes Act (monitoring of employer payments to personal pension schemes);
"employer contribution" -
(a) in relation to an occupational pension scheme, means any contribution payable by or on behalf of the employer towards the scheme in accordance with a schedule of contributions under Article 206 or a payment schedule under Article 85 of the 1995 Order (schedules of payments to money purchase schemes) whether -
(i) on the employer's own account (but in respect of one or more employees), or
(ii) on behalf of an employee out of deductions from the employee's earnings, and
(b) in relation to a personal pension scheme, means any contribution payable towards the scheme under direct payment arrangements.
Pension liberation: interpretation 14.
- (1) In this Article and Articles 15 to 17 -
(a) "pension scheme" means an occupational pension scheme or a personal pension scheme,
(b) "deposit-taker" has the meaning given by paragraphs (8A) and (8B) of Article 49 of the 1995 Order, except that, for the purposes of this definition, paragraph (8A)(c) of that Article has effect with the omission of the words from "or" to the end,
(c) references to money liberated from a pension scheme are to be read in accordance with paragraph (2),
(d) "liberated member", in relation to money liberated from a pension scheme, means the member of the pension scheme who is referred to in paragraph (2)(a), and
(e) "restraining order" means a restraining order under Article 16.
(2) Money is to be taken to have been liberated from a pension scheme if -
(a) the money directly or indirectly represents an amount that, in respect of accrued rights of a member of a pension scheme, has been transferred out of the scheme in pursuance of -
(i) a relevant statutory provision, or
(ii) a provision of the applicable rules, other than a relevant statutory provision,
(b) the trustees or managers of the scheme transferred the amount out of the scheme on the basis that a third party ("the liberator") would secure that the amount was used in an authorised way,
(c) the amount has not been used in an authorised way, and
(d) the liberator has not secured, and is not likely to secure, that the amount will be used in an authorised way.
(3) The following are "relevant statutory provisions" for the purposes of paragraph (2) -
(a) section 90(1)(a), (aa) or (b) of the Pension Schemes Act (right to cash equivalent under Chapter 4 of Part IV of that Act);
(b) section 97AB(1)(a) of that Act (right to cash transfer sum under Chapter 5 of Part IV of that Act);
(c) section 97F(1) of that Act (right to cash equivalent of pension credit benefit).
(4) In paragraph (2) "authorised way" means -
(a) where the amount concerned is transferred out of the scheme in pursuance of a provision mentioned in paragraph (3)(a), a way specified in subsection (2) or, as the case may be, subsection (3) of section 91 of the Pension Schemes Act;
(b) where that amount is transferred out in pursuance of the provision mentioned in paragraph (3)(b), a way specified in section 97AE(2) of that Act;
(c) where that amount is transferred out in pursuance of the provision mentioned in paragraph (3)(c), a way specified in subsection (2) or, as the case may be, subsection (3) of section 97F of that Act;
(d) where that amount is transferred out in pursuance of a provision of the kind mentioned in paragraph (2)(a)(ii), a way that is authorised by the applicable rules for amounts transferred out in pursuance of that provision.
(5) In this Article "the applicable rules" has the same meaning as, in the case of the pension scheme concerned, that expression has in section 90 of the Pension Schemes Act.
Pension liberation: Court's power to order restitution 15.
- (1) This Article applies where money has been liberated from a pension scheme.
(2) In this Article "recoverable property" means (subject to paragraph (3)) -
(a) the money or any of it, or
(b) property (of any kind and wherever situated) that, directly or indirectly, represents any of the money.
(3) Where a person acquires the beneficial interest in recoverable property in good faith, for value and without notice that the property is, or (as the case may be) represents, money liberated from a pension scheme -
(a) the property ceases to be recoverable property, and
(b) no property that subsequently represents it is recoverable property.
(4) The High Court, on the application of the Regulator, may make such order as the Court thinks just and convenient for the purpose of securing that recoverable property, or money representing its value or proceeds of its sale, is transferred -
(a) towards a pension scheme,
(b) towards an annuity or insurance policy, or
(c) to the liberated member.
(5) An order under paragraph (4) may (in particular) direct a person who holds recoverable property, or has any degree of control over recoverable property, to take steps for the purpose mentioned in that paragraph.
(6) Where the High Court makes an order under sub-paragraph (a) of paragraph (4), it may by order direct the trustees or managers of the scheme referred to in that sub-paragraph -
(a) to take steps for the purpose mentioned in that paragraph;
(b) to apply the property or money transferred, in such manner as the Court may direct, for the purpose of providing benefits under that scheme to or in respect of the liberated member.
(7) Regulations may modify any of the provisions of the Pension Schemes Act as it applies in relation to cases where an order is made under paragraph (6).
(8) The generality of the jurisdiction conferred by Article 12 is not to be taken to be prejudiced by this Article.
(9) The generality of the jurisdiction conferred by this Article is not to be taken to be prejudiced by Article 17.
Pension liberation: restraining orders 16.
- (1) The Regulator may make a restraining order in relation to an account with a deposit-taker if -
(a) it is satisfied that the account contains money which has been liberated from a pension scheme,
(b) it is satisfied that the account is held by or on behalf of -
(i) the liberator, or
(ii) a person who has to, or in practice is likely to, ensure that the account is operated in accordance with the liberator's directions, and
(c) the order is made pending consideration being given to the making of one or more repatriation orders in relation to the account under Article 17.
(2) A restraining order is an order directing that no credit or debit of any amount may be made to the account concerned ("the restrained account") during the period for which the order has effect.
(3) A restraining order must -
(a) specify the name of the deposit-taker in respect of which it is made,
(b) identify the account in respect of which it is made, and
(c) contain such other information as may be prescribed.
(4) A restraining order -
(a) takes effect when the deposit-taker concerned is notified by the Regulator of the making of the order, and
(b) (subject to paragraph (7)) ceases to have effect through expiry of time at the end of the six months beginning with the day when it is made.
(5) The Regulator may, at a time when a restraining order has effect, make an order extending (or further extending) the restraining order.
(6) An order under paragraph (5) (an "extension order") takes effect -
(a) when the deposit-taker concerned is notified by the Regulator of the making of the order, but
(b) only if notification under sub-paragraph (a) occurs at a time when the restraining order concerned has effect.
(7) Where an extension order takes effect -
(a) the restraining order concerned does not cease to have effect through expiry of time until the end of the six months beginning with the time when it would have ceased to have effect through expiry of time had it not been extended, but
(b) for so long as the extension order has effect, no further extension order can take effect before that time in relation to the restraining order.
(8) A restraining order does not prevent the crediting to the restrained account of an amount representing interest payable by the deposit-taker on any amount which is, or has been, in the account.
(9) Where a restraining order has effect, the deposit-taker must return to the payer any money credited to the restrained account in breach of the order.
(10) Where a restraining order has effect, the Regulator may, on an application made by or with the consent of the person by whom the restrained account is held, by order permit a payment specified in the order to be made out of the account if the Regulator is satisfied -
(a) that the payment will be made for the purpose of enabling -
(i) any individual to meet his reasonable living expenses, or
(ii) any person to carry on a trade, business, profession or occupation,
(b) that the beneficial interest in the money out of which the payment will be made belongs -
(i) to the individual, or person, concerned, or
(ii) to a person who consents to the making of the payment, and
(c) that the money out of which the payment will be made is not money liberated from a pension scheme.
(11) Article 10 of the 1995 Order (civil penalties) applies to a deposit-taker who, without reasonable excuse, fails to comply with any obligation imposed by a restraining order or by this Article.
Pension liberation: repatriation orders 17.
- (1) Paragraphs (2) and (3) apply where -
(a) a restraining order has effect, and
(b) the Regulator is satisfied that the restrained account contains an amount of money liberated from a pension scheme.
(2) The Regulator may by order -
(a) direct the deposit-taker concerned to pay from the account a sum not exceeding that amount -
(i) towards a pension scheme,
(ii) towards an annuity or insurance policy, or
(iii) to the liberated member, and
(b) where it makes an order under sub-paragraph (a)(i), direct the trustees or managers of the scheme to apply the sum, in such manner as the Regulator may direct, for the purpose of providing benefits under the scheme to or in respect of the liberated member.
(3) If it appears to the Regulator, on taking an overall view of transactions taking place before the restraining order was made, that there are two or more individuals each of whom is a person who is or may be the liberated member in relation to some of the money, the Regulator may determine the sums to be paid from the restrained account under paragraph (2) on any basis that appears to the Regulator to be just and reasonable.
(4) Regulations may modify any of the provisions of the Pension Schemes Act as it applies in relation to cases where an order is made under paragraph (2)(b).
(5) Article 10 of the 1995 Order (civil penalties) applies to a deposit-taker who, without reasonable excuse, fails to comply with a direction given to him under paragraph (2)(a).
(6) If the trustees or managers of a pension scheme fail to comply with a direction given to them under paragraph (2)(b), that Article applies to any trustee or manager who has failed to take all reasonable steps to secure compliance.
(7) In this Article "the restrained account" has the meaning given by Article 16.
Powers in relation to winding up of occupational pension schemes
Powers to wind up occupational pension schemes 18.
In Article 11 of the 1995 Order (powers to wind up occupational pension schemes) -
(a) omit paragraph (3),
(b) before paragraph (4) insert -
"
(3A) The Authority may, during an assessment period (within the meaning of Article 116 of the Pensions (Northern Ireland) Order 2005 (meaning of "assessment period" for the purposes of Part III of that Order)) in relation to an occupational pension scheme, by order direct the scheme to be wound up if they are satisfied that it is necessary to do so in order -
(a) to ensure that the scheme's protected liabilities do not exceed its assets, or
(b) if those liabilities do exceed its assets, to keep the excess to a minimum.
(3B) In paragraph (3A) -
(a) "protected liabilities" has the meaning given by Article 115 of the Pensions (Northern Ireland) Order 2005, and
(b) references to the assets of the scheme are references to those assets excluding any assets representing the value of any rights in respect of money purchase benefits (within the meaning of that Order) under the scheme.",