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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: - 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 -
(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 -
(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) -
(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) -
(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.
(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(b) to save the effect of any of the repealed provisions of any of those statutory provisions, or those provisions as adapted or modified by the order,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. 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 -
(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;
(3) In this Order, unless the context otherwise requires, references to the scheme rules, in relation to an occupational pension scheme, are references to -
(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) -
(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 -
(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 -
(b) such other persons as may be prescribed.
(6) Regulations may for any purpose of any provision of this Order -
(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 -
(b) section 39(2) of that Act (time beginning on a particular day), omit the word "not".
Regulator's functions 3. - (1) The Regulator has -
(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.
(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).
(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 -
(b) where the scheme is a stakeholder pension scheme, any other members.
(3) In this Article -
(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
(b) is incidental or conducive to their exercise.
Transfer of OPRA's functions to the Regulator
(b) the 1995 Order, and (c) the 1999 Order,
are hereby transferred to the Regulator.
Functions exercisable by the Determinations Panel
(b) where it so determines to exercise a reserved regulatory function, the power to exercise the function in question.
(2) Those circumstances are -
(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.
(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 -
(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 -
(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.
(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 8. - (1) The Regulator may provide such information, education and assistance as it considers appropriate to those involved in -
(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 -
(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).
Improvement notices 9. - (1) If the Regulator is of the opinion that a person -
(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.
(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 -
(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).
(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.
(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
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.
(b) contain a statement of -
(ii) the matters which it is asserted constitute the failure by the third party,
and the evidence on which that opinion is based, and
(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.
(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.
(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);
(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
(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 -
(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,
(3) The following are "relevant statutory provisions" for the purposes of paragraph (2) -
(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 -
(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.
(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 -
(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 -
(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.
(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).
(b) it is satisfied that the account is held by or on behalf of -
(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.
(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 -
(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.
(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 -
(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.
(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 -
(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.
(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 -
(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. Powers to wind up occupational pension schemes 18. In Article 11 of the 1995 Order (powers to wind up occupational pension schemes) -
(b) before paragraph (4) insert -
(b) if those liabilities do exceed its assets, to keep the excess to a minimum.
(3B) In paragraph (3A) -
(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.",
(c) at the end of paragraph (4) add -
Freezing orders
(b) the Regulator is satisfied that -
(ii) it is necessary to make the freezing order to protect the interests of the generality of the members of the scheme.
(3) A freezing order is an order directing that during the period for which it has effect -
(b) winding up of the scheme may not begin.
(4) A freezing order may also contain one or more of the following directions which have effect during the period for which the order has effect -
(b) a direction that -
(ii) no further specified contributions or payments,
are to be paid towards the scheme by or on behalf of the employer, any members or any specified members of the scheme;
(ii) has been deducted from a payment of any earnings in respect of an employment,
is to be repaid to the member in question by the employer;
(ii) no other steps or no specified other steps are to be taken to discharge any liability of the scheme to or in respect of a member of the scheme in respect of pensions or other benefits;
(g) a direction that no statements of entitlement are to be provided to members of the scheme under section 89A of the Pension Schemes Act (salary related schemes: right to statement of entitlement);
(ii) refunds or specified refunds of, or in respect of, contributions paid by or in respect of a member towards the scheme may only be made from the scheme if they are determined in a specified manner and satisfy such other conditions as may be specified.
(5) In paragraph (4)(b) -
(b) the references to payments towards a scheme include payments in respect of pension credits where the person entitled to the credit is a member of the scheme.
(6) A freezing order may not contain a direction under paragraph (4)(d) or (e) which reduces the benefits payable to or in respect of a member, for the period during which the order has effect, below the level to which the trustees or managers of the scheme would have power to reduce them if a winding up of the scheme had begun at the time when the freezing order took effect.
(b) the assets and liabilities which are to be taken into account, (c) the manner in which the valuation must be prepared, (d) the information and statements which it must contain, and (e) any other requirements that the valuation must satisfy.
(10) For the purposes of paragraph (8) -
(b) if no such actuary has been appointed -
(ii) a person approved by the Department.
(11) In this Article "specified" means specified in the freezing order.
(b) any obligation to pay those contributions (including any obligation under Article 49(8) of the 1995 Order to pay amounts deducted corresponding to such contributions) is to be treated as if it does not arise.
(5) If a freezing order contains a direction under Article 19(4)(f) (no transfers or discharge of member's rights) it does not prevent -
(b) giving effect to a pension earmarking order in a case where -
(ii) a direction under Article 19(4)(d) or (e) does not prevent the payment becoming due.
(6) For the purposes of paragraph (5) -
(b) an order under section 23 of the Matrimonial Causes Act 1973 (c. 18) so far as it includes provision made by virtue of section 25B or 25C of that Act (powers in England and Wales corresponding to those mentioned in paragraph (a)), or (c) an order under section 12A(2) or (3) of the Family Law (Scotland) Act 1985 (c. 37) (powers in relation to pension lump sums when making a capital sum order).
(7) Regulations may modify any provisions of -
(b) Chapter 5 of that Part (protection for early leavers: cash transfer sums and contribution refunds),
in their application to an occupational pension scheme in relation to which a freezing order is made containing a direction under Article 19(4)(f), (g) or (h) (no transfers etc. in respect of, member's rights or refunds of contributions etc. from the scheme).
(b) any person directly affected by the action.
Effect of determination to wind up scheme on freezing order
(b) that determination is made during the period for which a freezing order has effect in relation to the scheme, (c) the case is not one to which the special procedure in Article 93 applies (immediate exercise of powers where immediate risk to assets etc.), and (d) the winding up order accordingly cannot be made until the expiry of the period specified in Article 91(5) (no exercise of powers during period of referral to the Tribunal etc.).
(2) In such a case the freezing order is to continue to have effect until -
(b) the determination to make the winding up order is revoked.
(3) Paragraph (2) is subject to the Regulator's power under Article 96 to revoke the freezing order at any time.
(b) the order is made during the period for which a freezing order has effect in relation to the scheme.
(2) In such a case -
(b) the freezing order ceases to have effect from the time when the order under Article 11 of the 1995 Order is made.
(3) The Regulator may by order direct any specified person -
(b) to take those steps within a specified period.
(4) If the trustees or managers of a scheme fail to comply with a direction to them contained in an order under this Article, 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.
(b) at the time when the freezing order ceases to have effect, the Regulator has not made an order under Article 11 of the 1995 Order in relation to the scheme.
(2) In such a case the Regulator may make an order under this Article in relation to the scheme containing a direction that, if specified conditions are met, specified benefits are to accrue under the scheme rules to, or in respect of, specified members of the scheme in respect of specified periods of service being service in employment which but for the freezing order would have qualified the member in question for those benefits under the scheme rules.
(b) a requirement that a contribution of a specified amount must be paid by or on behalf of the employer within a specified period; (c) a requirement that such contributions as are specified under sub-paragraph (a) or (b) are to be accepted for the period for which the freezing order had effect or any part of that period.
(4) Where the freezing order contained a direction under Article 19(4)(d) or (e) and any amount of any benefit under the scheme rules was not paid as a result of the direction -
(b) any benefit to which a member, or a person in respect of a member, remains entitled at the end of the period for which the freezing order had effect is an amount which falls due to the member or, as the case may be, the person at the end of that period.
(5) If an order made under this Article in relation to a scheme is not complied with, Article 10 of the 1995 Order (civil penalties) applies to a trustee or a manager of the scheme who has failed to take all reasonable steps to secure compliance.
(b) the order contains a requirement as described in paragraph (3)(b) that a contribution of a specified amount must be paid by or on behalf of the employer within a specified period, and (c) the contribution is not paid within that period.
(7) In such a case -
(b) the amount which for the time being remains unpaid after the end of the specified period is to be treated as a debt due from the employer to the trustees or managers of the scheme, and (c) except in prescribed circumstances, the trustees or managers must, within a prescribed period, give notice of the failure to pay to the Regulator and to the member.
(8) If in any case paragraph (7)(c) is not complied with, Article 10 of the 1995 Order applies to any trustee or manager who has failed to take all reasonable steps to secure compliance.
(b) an order is made under Article 22 validating action taken in contravention of a freezing order made in relation to a scheme, (c) an order is made under Article 24 directing specified steps to be taken following the winding up of a scheme, or (d) an order is made under Article 26 in relation to a scheme where a freezing order ceases to have effect.
(2) The Regulator must, as soon as reasonably practicable after the order has been made, notify -
(b) the employer in relation to the scheme,
of the fact that the order has been made and of its effect.
(b) the members of the scheme specified in the order,
of the fact that the order mentioned in paragraph (1) has been made and of its effect.
(b) without regard to any such statutory provision, rule of law or rule of the scheme as would otherwise require, or might otherwise be taken to require, the implementation of any procedure or the obtaining of any consent, with a view to the making of the order.
(2) Paragraph (1) does not have effect to authorise the Regulator to make an order as mentioned in that paragraph if its doing so would be unlawful as a result of section 6(1) of the Human Rights Act 1998 (c. 42) (unlawful for public authority to act in contravention of a Convention right). Prohibition orders 29. For Article 3 of the 1995 Order (prohibition orders) substitute -
3. - (1) The Authority may by order prohibit a person from being a trustee of -
(b) a particular description of trust schemes, or (c) trust schemes in general,
if they are satisfied that he is not a fit and proper person to be a trustee of the scheme or schemes to which the order relates.
(b) if the determination is so referred, until the reference, and any appeal against the Tribunal's determination, has been finally disposed of.
(5) A revocation made at any time under this Article cannot affect anything done before that time.
Suspension orders
(b) in paragraph (2) -
(ii) after "have effect" insert "in relation to a trust scheme", and (iii) after "Article 3(1)" insert "in relation to that scheme",
(c) after paragraph (5) insert -
(b) if the determination is so referred, until the reference, and any appeal against the Tribunal's determination, has been finally disposed of.", and
(d) after paragraph (6) add -
Appointment of trustees by the Regulator
(b) after paragraph (5) insert -
(b) the employer, or (c) any member of the scheme,
for the appointment of a trustee of the scheme under paragraph (3)(a) or (c).".
(2) In Article 8 of that Order (consequences of appointment of trustees under Article 7), for paragraphs (1) and (2) substitute -
(b) out of the resources of the scheme, or (c) partly by the employer and partly out of those resources.
(2) Such an order may also provide that an amount equal to the amount (if any) paid out of the resources of the scheme by virtue of paragraph (1)(b) or (c) is to be treated for all purposes as a debt due from the employer to the trustees of the scheme.".
Independent trustees
(b) in paragraph (2), after "a scheme" insert "by virtue of paragraph (1)",
(b) at any time, not within sub-paragraph (a), when the scheme is authorised under Article 137 of that Order (closed schemes) to continue as a closed scheme.", and
(d) after paragraph (2A) (inserted by sub-paragraph (c)) insert -
(b) the Board of the Pension Protection Fund, and (c) the trustees of the scheme.
(2C) The events are -
(b) the practitioner ceasing to so act, if immediately after he does so this Article does not apply in relation to the scheme; (c) the official receiver beginning to act in a capacity mentioned in paragraph (1)(b)(i), (ia) or (ii), if immediately before he does so this Article does not apply in relation to the scheme; (d) the official receiver ceasing to act in such a capacity, if immediately after he does so this Article does not apply in relation to the scheme.
(2D) For the purposes of paragraph (2B) "the responsible person" means -
(b) in the case of an event within paragraph (2C)(c) or (d), the official receiver.
(2E) Regulations may require prescribed persons in prescribed circumstances where this Article begins or ceases to apply in relation to a trust scheme by virtue of paragraph (2A) to give a notice to that effect to -
(b) the Board of the Pension Protection Fund, and (c) the trustees of the scheme.
(2F) A notice under paragraph (2B), or under regulations under paragraph (2E), must be in writing and contain such information as may be prescribed.".
(3) For Articles 23 and 24 (appointment of independent trustees) substitute -
23. - (1) While Article 22 applies in relation to a trust scheme, the Authority may by order appoint as a trustee of the scheme a person who -
(b) is registered in the register maintained by the Authority in accordance with regulations under paragraph (4).
(2) In relation to a particular trust scheme, no more than one trustee may at any time be an independent trustee appointed under paragraph (1).
(b) he is neither connected with, nor an associate of -
(ii) any person for the time being acting as an insolvency practitioner in relation to the employer, or (iii) the official receiver acting in any of the capacities mentioned in Article 22(1)(b) in relation to the employer, and
(c) he satisfies any prescribed requirements;
and any reference in this Part to an independent trustee is to be construed accordingly.
(b) for the inspection of the register by prescribed persons in prescribed circumstances.
(6) The circumstances which may be prescribed under paragraph (5)(a) or (b) include the payment by the person to whom the copy is to be provided, or by whom the register is to be inspected, of such reasonable fee as may be determined by the Authority.
(4) In Article 25 (appointment and powers of independent trustees: further provisions) -
(b) after paragraph (5) insert -
(b) out of the resources of the scheme, or (c) partly by the employer and partly out of those resources.
(7) Such an order may also provide that an amount equal to the amount (if any) paid out of the resources of the scheme by virtue of paragraph (6)(b) or (c) is to be treated for all purposes as a debt due from the employer to the trustees of the scheme.
Disqualification
Contribution notices where avoidance of employer debt 34. - (1) This Article applies in relation to an occupational pension scheme other than -
(b) a prescribed scheme or a scheme of a prescribed description.
(2) The Regulator may issue a notice to a person stating that the person is under a liability to pay the sum specified in the notice (a "contribution notice") -
(b) where the Board has assumed responsibility for the scheme in accordance with Chapter 3 of Part III (pension protection), to the Board.
(3) The Regulator may issue a contribution notice to a person only if -
(b) the person was at any time in the relevant period -
(ii) a person connected with, or an associate of, the employer,
(c) the Regulator is of the opinion that the person, in being a party to the act or failure, was not acting in accordance with his functions as an insolvency practitioner in relation to another person, and
(4) But the Regulator may not issue a contribution notice, in such circumstances as may be prescribed, to a person of a prescribed description.
(ii) otherwise than in good faith, to prevent such a debt becoming due, to compromise or otherwise settle such a debt, or to reduce the amount of such a debt which would otherwise become due,
(b) it is an act which occurred or a failure to act which first occurred -
(ii) before any assumption of responsibility for the scheme by the Board in accordance with Chapter 3 of Part III, and
(c) it is either -
(ii) a failure which first occurred during, or continued for the whole or part of, that period.
(6) For the purposes of paragraph (3) -
(b) "the relevant period" means the period which -
(ii) ends with the determination by the Regulator to exercise the power to issue the contribution notice in question.
(7) The Regulator, when deciding for the purposes of paragraph (3)(d) whether it is reasonable to impose liability on a particular person to pay the sum specified in the notice, must have regard to such matters as the Regulator considers relevant including, where relevant, the following matters -
(b) the relationship which the person has or has had with the employer (including, where the employer is a company within the meaning of paragraph (11) of Article 4 of the Insolvency Order, whether the person has or has had control of the employer within the meaning of paragraph (10) of that Article), (c) any connection or involvement which the person has or has had with the scheme, (d) if the act or failure to act was a notifiable event for the purposes of Article 64 (duty to notify the Regulator of certain events), any failure by the person to comply with any obligation imposed on the person by paragraph (1) of that Article to give the Regulator notice of the event, (e) all the purposes of the act or failure to act (including whether a purpose of the act or failure was to prevent or limit loss of employment), (f) the financial circumstances of the person, and (g) such other matters as may be prescribed.
(8) For the purposes of this Article references to a debt due under Article 75 of the 1995 Order include a contingent debt under that Article.
(b) Article 4 of that Order (associated persons) applies as it applies for the purposes of that Order.
(11) For the purposes of this Article "insolvency practitioner", in relation to a person, means -
(b) an insolvency practitioner within the meaning of Article 105(9)(b) (persons of a prescribed description).
The sum specified in an Article 34 contribution notice
(b) in a case where, at the relevant time, no such debt was due, the amount which the Regulator estimates to be the amount of the debt under Article 75 of the 1995 Order which would become due if -
(ii) the time designated by the trustees or managers of the scheme for the purposes of that paragraph were the relevant time.
(3) Where the Regulator is satisfied that the act or failure to act falling within Article 34(5) resulted -
(b) in a case falling within sub-paragraph (b) of paragraph (2), in the amount of any such debt calculated for the purposes of that sub-paragraph being less than it would otherwise have been,
the Regulator may increase the amounts calculated under paragraph (2)(a) or (b) by such amount as the Regulator considers appropriate.
(b) in the case of a failure to act falling within that paragraph -
(ii) where the failure continued for a period of time, the time which the Regulator determines and which falls within that period.
(5) For the purposes of this Article -
(b) references to the amount of such a debt include the amount of such a contingent debt.
Content and effect of an Article 34 contribution notice
(b) specify the sum which the person is stated to be under a liability to pay, and (c) identify any other persons to whom contribution notices have been or are issued as a result of the act or failure to act in question and the sums specified in each of those notices.
(3) Where the contribution notice states that the person is under a liability to pay the sum specified in the notice to the trustees or managers of the scheme, the sum is to be treated as a debt due from the person to the trustees or managers of the scheme.
(b) specifies the same sum as is specified in P's contribution notice, and (c) specifies that the person to whom the contribution notice is issued is jointly and severally liable with P, or with P and other persons, for the debt in respect of that sum.
(10) A debt due by virtue of a contribution notice is not to be taken into account for the purposes of Article 75(2) and (4) of the 1995 Order (deficiencies in the scheme assets) when ascertaining the amount or value of the assets or liabilities of a scheme.
(b) where the Board has assumed responsibility for the scheme in accordance with Chapter 3 of Part III (pension protection), to the Board.
(3) Condition B is met if, after the contribution notice is issued but before the whole of the debt due by virtue of the notice is recovered, a debt becomes due from the employer to the trustees or managers of the scheme under Article 75 of the 1995 Order.
(b) to the Board in respect of any debt due to it by virtue of the contribution notice,
are to be treated as reducing the amount of the debt due to the trustees or managers or, as the case may be, to the Board under Article 75 of the 1995 Order.
(b) issue a revised contribution notice specifying the revised sum.
(10) For the purposes of paragraph (9), the Regulator must have regard to such matters as the Regulator considers relevant including, where relevant, the following matters -
(b) any amounts paid in respect of the debt due by virtue of that contribution notice, (c) whether contribution notices have been issued to other persons as a result of the same act or failure to act falling within paragraph (5) of Article 34 as the act or failure as a result of which P's contribution notice was issued, (d) where such contribution notices have been issued, the sums specified in each of those notices and any amounts paid in respect of the debt due by virtue of those notices, (e) whether P's contribution notice specifies that P is jointly and severally liable for the debt with other persons, and (f) such other matters as may be prescribed.
(11) Where -
(b) a revised contribution notice is issued to P under paragraph (9) specifying a revised sum,
the Regulator must also issue revised contribution notices to those other persons specifying the revised sum and their joint and several liability with P for the debt in respect of that sum.
(b) references to the amount of such a debt include the amount of such a contingent debt.
Article 34 contribution notice: clearance statements
(b) it would not be reasonable to impose any liability on the applicant under a contribution notice issued under Article 34, or (c) such requirements of that Article as may be prescribed would not be satisfied in relation to the applicant.
(3) Where an application is made under this Article, the Regulator -
(b) may invite the applicant to amend the application to modify the circumstances described.
(4) Where an application is made under this Article, the Regulator must as soon as reasonably practicable -
(b) where it determines to do so, issue the statement.
(5) A clearance statement issued under this Article binds the Regulator in relation to the exercise of the power to issue a contribution notice under Article 34 to the applicant unless -
(b) the difference in those circumstances is material to the exercise of the power.
Financial support directions
(b) a prescribed scheme or a scheme of a prescribed description.
(2) The Regulator may issue a financial support direction under this Article in relation to such a scheme if the Regulator is of the opinion that the employer in relation to the scheme -
(b) is insufficiently resourced,
at a time determined by the Regulator which falls within paragraph (9) ("the relevant time").
(b) that thereafter that financial support or other financial support remains in place while the scheme is in existence, and (c) that the Regulator is notified in writing of prescribed events in respect of the financial support as soon as reasonably practicable after the event occurs.
(4) A financial support direction in relation to a scheme may be issued to one or more persons.
(b) the Regulator is of the opinion that it is reasonable to impose the requirements of the direction on that person.
(6) A person falls within this paragraph if the person is -
(b) an individual who -
(ii) is not an associate of that individual by reason only of being employed by him, or
(c) a person, other than an individual, who is connected with or an associate of the employer.
(7) The Regulator, when deciding for the purposes of paragraph (5)(b) whether it is reasonable to impose the requirements of a financial support direction on a particular person, must have regard to such matters as the Regulator considers relevant including, where relevant, the following matters -
(b) in the case of a person falling within paragraph (6)(b) or (c), the value of any benefits received directly or indirectly by that person from the employer, (c) any connection or involvement which the person has or has had with the scheme, (d) the financial circumstances of the person, and (e) such other matters as may be prescribed.
(8) A financial support direction must identify all the persons to whom the direction is issued.
(b) E is a member of a group of companies, and (c) E's turnover, as shown in the latest available accounts for E prepared in accordance with Article 234 of that Order, is solely or principally derived from amounts charged for the provision of the services of employees of E to other members of that group.
(3) The employer in relation to a scheme is insufficiently resourced at the relevant time if -
(b) there is at that time a person who falls within paragraph (6)(b) or (c) of Article 39 and the value at that time of that person's resources is not less than the amount which is the difference between -
(ii) the amount which is the prescribed percentage of the estimated Article 75 debt.
(4) For the purposes of paragraph (3) -
(b) the value of a person's resources is to be determined, calculated and verified in a prescribed manner.
(5) In this Article the "estimated Article 75 debt", in relation to a scheme, 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 Article 75 of the 1995 Order (deficiencies in the scheme assets) if -
(b) the time designated by the trustees or managers of the scheme for the purposes of that paragraph were the relevant time.
(6) When calculating the estimated Article 75 debt in relation to a scheme under paragraph (5), the amount of any debt due at the relevant time from the employer under Article 75 of the 1995 Order is to be disregarded.
(b) an arrangement whereby, at any time when the employer is a member of a group of companies, a company (within the meaning given in Article 4 of the Companies Order) which meets prescribed requirements and is the holding company of the group is liable for the whole or part of the employer's pension liabilities in relation to the scheme; (c) an arrangement which meets prescribed requirements and whereby additional financial resources are provided to the scheme; (d) such other arrangements as may be prescribed.
(3) The Regulator may not issue a notice under paragraph (1) approving the details of one or more arrangements falling within paragraph (2) unless it is satisfied that the arrangement is, or the arrangements are, reasonable in the circumstances.
(b) the liabilities for any debt which is or may become due to the trustees or managers of the scheme from the employer whether by virtue of Article 75 of the 1995 Order (deficiencies in the scheme assets) or otherwise.
Financial support directions: clearance statements
(b) the employer in relation to the scheme would not be insufficiently resourced for the purposes of that Article, or (c) it would not be reasonable to impose the requirements of a financial support direction, in relation to the scheme, on the applicant.
(3) Where an application is made under this Article, the Regulator -
(b) may invite the applicant to amend the application to modify the circumstances described.
(4) Where an application is made under this Article, the Regulator must as soon as reasonably practicable -
(b) where it determines to do so, issue the statement.
(5) A clearance statement issued under this Article binds the Regulator in relation to the exercise of the power to issue a financial support direction under Article 39 in relation to the scheme to the applicant unless -
(b) the difference in those circumstances is material to the exercise of the power.
Contribution notices where non-compliance with financial support direction
(b) the relationship which the person has or has had with the employer (including, where the employer is a company within the meaning of paragraph (11) of Article 4 of the Insolvency Order, whether the person has or has had control of the employer within the meaning of paragraph (10) of that Article), (c) in the case of a person to whom the financial support direction was issued as a person falling within Article 39(6)(b) or (c), the value of any benefits received directly or indirectly by that person from the employer, (d) the relationship which the person has or has had with the parties to any arrangements put in place in accordance with the direction (including, where any of those parties is a company within the meaning of paragraph (11) of Article 4 of the Insolvency Order, whether the person has or has had control of that company within the meaning of paragraph (10) of that Article), (e) any connection or involvement which the person has or has had with the scheme, (f) the financial circumstances of the person, and (g) such other matters as may be prescribed.
(5) A contribution notice may not be issued under this Article in respect of non-compliance with a financial support direction in relation to a scheme where the Board has assumed responsibility for the scheme in accordance with Chapter 3 of Part III (pension protection).
(b) in a case where, at the time of non-compliance, no such debt was due, the amount which the Regulator estimates to be the amount of the debt under Article 75 of the 1995 Order which would become due if -
(ii) the time designated by the trustees or managers of the scheme for the purposes of that paragraph were the time of non-compliance.
(3) For the purposes of this Article "the time of non-compliance" means -
(b) in the case of non-compliance with sub-paragraph (b) of that paragraph, the time when financial support for the scheme ceased to be in place, (c) in the case of non-compliance with sub-paragraph (c) of that paragraph, the time when the prescribed event occurred in relation to which there was the failure to notify the Regulator, or (d) where more than one of sub-paragraphs (a) to (c) apply, whichever of the times specified in the applicable sub-paragraphs the Regulator determines.
Content and effect of an Article 43 contribution notice
(b) specify the sum which the person is stated to be under a liability to pay.
(3) The sum specified in the notice is to be treated as a debt due from the person to the trustees or managers of the scheme.
(b) specifies the same sum as is specified in P's contribution notice, and (c) specifies that the person to whom the contribution notice is issued is jointly and severally liable with P, or with P and other persons, for the debt in respect of that sum.
(10) A debt due by virtue of a contribution notice is not to be taken into account for the purposes of Article 75(2) and (4) of the 1995 Order (deficiencies in the scheme assets) when ascertaining the amount or value of the assets or liabilities of a scheme.
(b) to the Board in respect of any debt due to it by virtue of the contribution notice (where it has assumed responsibility for the scheme in accordance with Chapter 3 of Part III (pension protection)),
are to be treated as reducing the amount of the debt due to the trustees or managers or, as the case may be, to the Board under Article 75 of the 1995 Order.
(b) issue a revised contribution notice specifying the revised sum.
(10) For the purposes of paragraph (9), the Regulator must have regard to such matters as the Regulator considers relevant including, where relevant, the following matters -
(b) any amounts paid in respect of the debt due by virtue of that contribution notice, (c) whether contribution notices have been issued to other persons in respect of the same non-compliance with the financial support direction in question as the non-compliance in respect of which P's contribution notice was issued, (d) where such contribution notices have been issued, the sums specified in each of those notices and any amounts paid in respect of the debt due by virtue of those notices, (e) whether P's contribution notice specifies that P is jointly and severally liable for the debt with other persons, and (f) such other matters as may be prescribed.
(11) Where -
(b) a revised contribution notice is issued to P under paragraph (9) specifying a revised sum,
the Regulator must also issue revised contribution notices to those other persons specifying the revised sum and their joint and several liability with P for the debt in respect of that sum.
(2) For the purposes of Articles 39 to 46 -
(b) references to the amount of such a debt include the amount of such a contingent debt.
(3) For the purposes of Articles 39 to 46 -
(b) Article 4 of that Order (associated persons) applies as it applies for the purposes of that Order.
Restoration orders where transactions at an undervalue
(b) a prescribed scheme or a scheme of a prescribed description.
(2) The Regulator may make a restoration order in respect of a transaction involving assets of the scheme if -
(b) the transaction is a transaction at an undervalue entered into with a person at a time which -
(ii) is not more than two years before the occurrence of the relevant event in relation to the employer.
(3) A restoration order in respect of a transaction involving assets of a scheme is such an order as the Regulator thinks fit for restoring the position to what it would have been if the transaction had not been entered into.
(b) the trustees or managers of the scheme make an application under paragraph (1) of Article 113 or receive a notice from the Board under paragraph (5)(a) of that Article (applications and notifications prior to the Board assuming responsibility for a scheme).
(5) For the purposes of paragraph (4) -
(b) Article 105 (meaning of "insolvency event") applies for the purposes of determining if and when an insolvency event has occurred in relation to the employer, and (c) the reference to an insolvency event in relation to the employer does not include an insolvency event which occurred in relation to him before he became the employer in relation to the scheme.
(6) For the purposes of this Article and Article 49, a transaction involving assets of a scheme is a transaction at an undervalue entered into with a person ("P") if the trustees or managers of the scheme or appropriate persons in relation to the scheme -
(b) enter into a transaction with P for a consideration the value of which, in money or money's worth, is significantly less than the value, in money or money's worth, of the consideration provided by or on behalf of the trustees or managers of the scheme.
(7) In paragraph (6) "appropriate persons" in relation to a scheme means a person who, or several persons each of whom is a person who, at the time at which the transaction in question is entered into, is -
(b) entitled to exercise powers in relation to the scheme.
(8) For the purposes of this Article and Article 49 -
(9) The provisions of this Article apply without prejudice to the availability of any other remedy, even in relation to a transaction where the trustees or managers of the scheme or appropriate persons in question had no power to enter into the transaction.
(ii) where the Board has assumed responsibility for the scheme, to the Board;
(b) require any property to be transferred to the trustees or managers of the scheme or, where the Board has assumed responsibility for the scheme, to the Board if it represents in any person's hands -
(ii) property derived from any such assets so transferred;
(c) require such property as the Regulator may specify in the order, in respect of any consideration for the transaction received by the trustees or managers of the scheme, to be transferred -
(ii) where the Board has assumed responsibility for the scheme, by the Board,
to such persons as the Regulator may specify in the order;
(ii) where the Board has assumed responsibility for the scheme, to the Board.
(3) A restoration order is of no effect to the extent that it prejudices any interest in property which was acquired in good faith and for value or any interest deriving from such an interest.
(b) at the time of the acquisition or receipt -
(ii) he is a trustee or manager, or the employer, in relation to the scheme, or (iii) he is connected with, or an associate of, any of the persons mentioned in sub-paragraph (a) or (b)(ii),
then, unless the contrary is shown, it is to be presumed for the purposes of paragraphs (3) and (4) that the interest was acquired or the benefit was received otherwise than in good faith.
(6) For the purposes of this Article -
(b) Article 4 of that Order (associated persons) applies as it applies for the purposes of that Order.
(7) For the purposes of this Article "property" includes -
(b) obligations and every description of interest, whether present or future or vested or contingent, arising out of, or incidental to, property.
(8) References in this Article to where the Board has assumed responsibility for a scheme are to where the Board has assumed responsibility for the scheme in accordance with Chapter 3 of Part III (pension protection).
(b) a person fails to comply with an obligation imposed on him by the order which is not an obligation to transfer or pay a sum of money.
(2) The Regulator may issue a notice to the person stating that the person is under a liability to pay the sum specified in the notice (a "contribution notice") -
(b) where the Board has assumed responsibility for the scheme in accordance with Chapter 3 of Part III (pension protection), to the Board.
(3) The sum specified by the Regulator in a contribution notice may be either the whole or a specified part of the shortfall sum in relation to the scheme.
(b) specify the sum which the person is stated to be under a liability to pay.
(3) Where the contribution notice states that the person is under a liability to pay the sum specified in the notice to the trustees or managers of the scheme, the sum is to be treated as a debt due from the person to the trustees or managers of the scheme. Articles 34 to 52: partnerships and limited liability partnerships 53. - (1) For the purposes of any of Articles 34 to 52, regulations may modify any of the definitions mentioned in paragraph (2) (as applied by any of those Articles) in relation to -
(b) a limited liability partnership or a member of such a partnership.
(2) The definitions mentioned in paragraph (1) are -
(b) Article 4 of that Order (associated persons), and (c) Article 4 of the Companies Order (meaning of "subsidiary" and "holding company" etc.).
(3) Regulations may also provide that any provision of Articles 34 to 52 applies with such modifications as may be prescribed in relation to -
(ii) for the purposes of any of those Articles, connected with or an associate of the employer;
(b) any case where a limited liability partnership is -
(ii) for the purposes of any of those Articles, connected with or an associate of the employer.
(4) Regulations may also provide that any provision of Articles 48 to 52 applies with such modifications as may be prescribed in relation to a partnership or a limited liability partnership.
(b) references to a partner are to be construed accordingly.
(6) For the purposes of this Article, "limited liability partnership" means -
(b) an entity which is of a similar character to such a limited liability partnership and which is formed under the law of a country or territory outside the United Kingdom,
and references to a member of a limited liability partnership are to be construed accordingly.
(b) Article 280 (power to modify this Order in relation to certain categories of schemes).
Regulator's right to apply under Article 367 of the Insolvency Order
(b) condition A or condition B is met in relation to the scheme.
(3) Condition A is that an actuarial valuation under Article 127 obtained by the Board in respect of the scheme indicates that the value of the assets of the scheme at the relevant time, as defined by that Article, was less than the amount of the protected liabilities, as defined by Article 115, at that time.
(b) is a body corporate which is being wound up or is in administration, or (c) is a partnership which is being wound up or is in administration,
paragraph (2) does not enable an application to be made under Article 367 except with the permission of the court.
(b) the Board.
(7) This Article does not apply where the valuation mentioned in paragraph (3) or (4) is made by reference to a date that falls before the coming into operation of this Article. Registrable information 55. - (1) For the purposes of this Article and Articles 56 to 60 "registrable information", in relation to an occupational or personal pension scheme, means information within paragraph (2). (2) That information is -
(b) the address of the scheme; (c) the full names and addresses of each of the trustees or managers of the scheme; (d) the status of the scheme with respect to the following matters -
(ii) whether further benefits may accrue to, or in respect of, members under the scheme; (iii) whether further contributions may be paid towards the scheme; (iv) whether any members of the scheme are active members;
(e) the categories of benefits under the scheme;
(ii) any other name by which any relevant employer has been known at any time on or after the relevant date;
(g) in the case of an occupational pension scheme, the number of members of the scheme on the later of -
(ii) the day on which the scheme became a registrable scheme; and
(h) such other information as may be prescribed.
(3) Regulations may make provision about the interpretation of any of the descriptions in paragraph (2).
(b) who, at any time on or after 6th April 1975, has been,
the employer in relation to the scheme;
(b) if later, the date on which the relevant employer first became the employer in relation to the scheme.
(5) In this Article and Articles 57 to 60 "registrable scheme" means an occupational pension scheme, or a personal pension scheme, of a prescribed description.
(ii) extracts from the register, or (iii) copies of the register or of extracts from it,
to be provided to prescribed persons in prescribed circumstances, and
(ii) extracts from the register, or (iii) copies of the register or of extracts from it,
by prescribed persons in prescribed circumstances.
(2) Regulations under paragraph (1) may, in particular -
(ii) a person authorised by the Department for the purposes of the regulations;
(b) make provision with respect to the disclosure of information obtained by virtue of the regulations.
(3) Regulations which contain any provision made by virtue of paragraph (2)(b) may, in particular, modify Article 77 (restricted information).
(b) the operation of the Regulator's functions in relation to the register.
(5) A direction under paragraph (4) may specify -
(b) the times at which,
reports required by the direction are to be submitted.
(b) an occupational or personal pension scheme otherwise becomes a registrable scheme.
(2) The trustees or managers of the scheme must, before the end of the initial notification period -
(b) provide to the Regulator all the registrable information with respect to the scheme.
(3) In paragraph (2), the "initial notification period" means the period of three months beginning with -
(b) if later, the date on which it becomes a registrable scheme.
(4) Where there is a change in any registrable information in respect of a registrable scheme, the trustees or managers of the scheme must as soon as reasonably practicable, notify the Regulator -
(b) of the new registrable information.
(5) Where a registrable scheme -
(b) is wound up (otherwise than under Article 145(2) (effect of Board assuming responsibility for scheme)),
the trustees or managers of the scheme must as soon as reasonably practicable, notify the Regulator of that fact.
(b) must issue subsequent scheme return notices in accordance with paragraph (4).
(3) The return date specified in a scheme return notice issued in respect of a scheme under paragraph (2)(a) -
(ii) if earlier, the date on which the Regulator first becomes aware that the scheme is a registrable scheme, and
(b) if the trustees or managers have complied with sub-paragraph (b) of Article 57(2), must fall after the end of the period of one year beginning with the date on which they provided the information required by that sub-paragraph to the Regulator.
(4) The return date specified in a scheme return notice issued in respect of a scheme under paragraph (2)(b) must fall -
(b) after the end of the period of one year,
beginning with the return date specified in the previous scheme return notice issued in respect of the scheme.
(3) A scheme return notice must specify -
(b) the return date,
and may specify the form in which that information is to be provided.
(b) may require other information which the Regulator reasonably requires for the purposes of the exercise of its functions in relation to the scheme.
(5) The return date specified in a scheme return notice must fall after the end of the period of 28 days beginning with the date on which the notice is issued. Register of prohibited trustees 61. - (1) The Regulator must keep in such manner as it thinks fit a register of all persons who are prohibited under Article 3 of the 1995 Order ("the prohibition register"). (2) Arrangements made by the Regulator for the prohibition register must secure that the contents of the register are not disclosed or otherwise made available to members of the public except in accordance with Article 62. (3) Nothing in paragraph (2) requires the Regulator to exclude any matter from a report published under Article 84 (reports of Regulator's consideration of cases). Accessibility of register of prohibited trustees 62. - (1) The Regulator must make arrangements to secure that the prohibition register is open, during its normal working hours, for inspection in person and without notice at -
(b) such other offices (if any) of the Regulator or of the Department as the Regulator considers to be places where it would be reasonable for a copy of the register to be kept open for inspection.
(2) If a request is made to the Regulator -
(b) to state whether a particular person so identified is a person appearing in that register as prohibited in respect of a particular description of occupational trust schemes so specified, or (c) to state whether a particular person so identified is a person appearing in that register as prohibited in respect of all occupational trust schemes,
the Regulator must promptly comply with the request in such manner as it considers reasonable.
(b) arranges that information in the manner described in paragraph (5), (c) does not (except by identifying a person as prohibited in respect of all occupational trust schemes, in respect of a particular description of such schemes or in respect of a particular such scheme) identify any of the schemes in respect of which persons named in the summary are prohibited, and (d) does not disclose any other information contained in the register.
(4) That information is -
(b) the dates of birth of such of those persons as are persons whose dates of birth are matters of which the Regulator has a record, and (c) in the case of each person whose name is included in the published summary, whether that person appears in the register -
(ii) as prohibited in respect of one or more particular descriptions of such schemes, but not in respect of all such schemes, or (iii) as prohibited in respect of all such schemes.
(5) For the purposes of sub-paragraph (c) of paragraph (4), the information in the published register must be arranged in three separate lists, one for each of the descriptions of prohibition specified in the heads of that sub-paragraph.
(b) is a determination which might still become the subject of any such reference, review, appeal or proceedings.
(7) The Regulator must ensure, in the case of any published summary, that the particulars relating to a person do not appear in a particular list mentioned in paragraph (5) if it appears to the Regulator that a determination by virtue of which that person's particulars would appear in that list -
(b) is a determination which might still become the subject of any such reference, review, appeal or proceedings.
(8) Where paragraph (7) prevents a person's particulars from being included in a particular list in the published summary, they must be included, instead, in the list (if any) in which they would have been included if the prohibition to which the reference, review, appeal or proceedings relate or might relate had already been revoked or otherwise overturned.
(b) there is a reasonable likelihood that such an application might yet be made, or that such an appeal or such proceedings might yet be brought.
(10) In this Article -
Information relevant to the Board 63. The Regulator may collect any information which appears to it to be relevant to the exercise of the functions of the Board. Duty to notify the Regulator of certain events 64. - (1) Except where the Regulator otherwise directs, the appropriate person must give notice of any notifiable event to the Regulator. (2) In paragraph (1) "notifiable event" means -
(b) a prescribed event in respect of the employer in relation to an eligible scheme.
(3) For the purposes of paragraph (1) -
(ii) a person of a prescribed description, and
(b) in relation to an event within paragraph (2)(b), each of the following is "the appropriate person" -
(ii) a person of a prescribed description.
(4) A notice under paragraph (1) -
(b) subject to paragraph (5), must be given as soon as reasonably practicable after the person giving it becomes aware of the notifiable event.
(5) Regulations may require a notice under paragraph (1) to be given before the beginning of the prescribed period ending with the notifiable event in question.
Duty to report breaches of the law 65. - (1) Paragraph (2) imposes a reporting requirement on the following persons -
(b) a person who is otherwise involved in the administration of such a scheme; (c) the employer in relation to an occupational pension scheme; (d) a professional adviser in relation to such a scheme; (e) a person who is otherwise involved in advising the trustees or managers of an occupational or personal pension scheme in relation to the scheme.
(2) Where the person has reasonable cause to believe that -
(b) the failure to comply is likely to be of material significance to the Regulator in the exercise of any of its functions,
he must give a written report of the matter to the Regulator as soon as reasonably practicable. Reports by skilled persons 66. - (1) The Regulator may issue a notice (a "report notice") to -
(b) any employer in relation to such a scheme, or (c) any person who is otherwise involved in the administration of such a scheme,
requiring them or, as the case may be, him to provide the Regulator with a report on one or more specified matters which are relevant to the exercise of any of the Regulator's functions.
(b) appearing to the Regulator to have the skills necessary to make a report on the matter or matters concerned.
(3) A report notice may require the report to be provided to the Regulator -
(b) before a specified date.
(4) The costs of providing a report in accordance with a report notice must be met by the person to whom the notice is issued ("the notified person").
Provision of information 67. - (1) The Regulator may, by notice in writing, require any person to whom paragraph (2) applies to produce any document, or provide any other information, which is -
(b) relevant to the exercise of the Regulator's functions.
(2) This paragraph applies to -
(b) a professional adviser in relation to an occupational pension scheme, (c) the employer in relation to -
(ii) a personal pension scheme where direct payment arrangements exist in respect of one or more members of the scheme who are employees, and
(d) any other person appearing to the Regulator to be a person who holds, or is likely to hold, information relevant to the exercise of the Regulator's functions.
(3) Where the production of a document, or the provision of information, is required by a notice given under paragraph (1), the document must be produced, or information must be provided, in such a manner, at such a place and within such a period as may be specified in the notice.
this Part; Part IV (scheme funding); Articles 218 to 220 (member-nominated trustees and directors); Articles 224 to 226 (requirement for knowledge and understanding); Article 229 (UK-based scheme to be trust with effective rules); Article 230 (non-European scheme to be trust with UK resident trustee); Article 232 (activities of occupational pension schemes); Article 233 (no indemnification for fines or civil penalties); Articles 236 and 238 (consultation by employers); Part VII (cross-border activities within European Union); Part IX (miscellaneous and supplementary);
(b) either of the following provisions of the 1999 Order -
Article 42 (information);
(c) any of the provisions of Part II of the 1995 Order (occupational pension schemes), other than -
(ii) Articles 62 to 65 (equal treatment);
(d) any of the following provisions of the Pension Schemes Act -
Chapter 5 of Part IV (early leavers: cash transfer sums and contribution refunds); Chapter 2 of Part IVA (pension credit transfer values); section 109 (information); section 170 (levy);
(e) any provisions in force in Great Britain corresponding to any provisions within sub-paragraphs (a) to (d).
(3) An inspector may, for the purposes of investigating whether, in the case of a stakeholder scheme -
(b) any corresponding provisions in force in Great Britain,
are being, or have been, complied with, at any reasonable time enter premises liable to inspection.
(b) is established under a trust;
the "trust-based scheme provisions" means any provisions contained in or made by virtue of -
(b) any corresponding provision in force in Great Britain.
(6) Premises are liable to inspection for the purposes of this Article if the inspector has reasonable grounds to believe that -
(b) documents relevant to the administration of the scheme are being kept there, or (c) the administration of the scheme, or work connected with that administration, is being carried out there.
(7) In this Article, "stakeholder scheme" means an occupational pension scheme or a personal pension scheme which is or has been registered under -
(b) any corresponding provision in force in Great Britain.
Inspection of premises in respect of employers' obligations
(b) any corresponding provision in force in Great Britain,
at any reasonable time enter premises liable to inspection.
(b) documents relevant to the administration of the employer's business are being kept there, or (c) the administration of the employer's business, or work connected with that administration, is being carried out there.
(3) In paragraphs (1) and (2), "employer" has the meaning given in Article 5(9) of the 1999 Order (or, where paragraph (1)(b) applies, in any corresponding provision in force in Great Britain).
(b) section 107A of the Pension Schemes Act (monitoring of employers' payments to personal pension schemes), or (c) any corresponding provision in force in Great Britain,
is being, or has been, complied with, at any reasonable time enter premises liable to inspection.
(b) documents relevant to the administration of -
(ii) the direct payment arrangements, or (iii) the scheme to which those arrangements relate,
are being kept there, or
(ii) work connected with that administration.
(6) In the application of paragraphs (4) and (5) in relation to any provision mentioned in paragraph (4)(c) (a "corresponding Great Britain provision"), references in those paragraphs to -
a personal pension scheme, the employer, or employees of the employer, are to be read as having the meanings that they have for the purposes of the corresponding Great Britain provision.
Inspection of premises: powers of inspectors
(b) may require any person on the premises to produce, or secure the production of, any document relevant to compliance with the regulatory provisions for his inspection, (c) may take copies of any such document, (d) may take possession of any document appearing to be a document relevant to compliance with the regulatory provisions or take in relation to any such document any other steps which appear necessary for preserving it or preventing interference with it, (e) may, in the case of any such document which consists of information which is stored in electronic form and is on, or accessible from, the premises, require the information to be produced in a form -
(ii) in which it is legible or from which it can readily be produced in a legible form, and
(f) may, as to any matter relevant to compliance with the regulatory provisions, examine, or require to be examined, either alone or in the presence of another person, any person on the premises whom he has reasonable cause to believe to be able to give information relevant to that matter.
Inspection of premises: supplementary
(b) an offence is being or has been committed under any of the regulatory provisions,
is to be treated as a question whether the regulatory provision is being, or has been, complied with.
(b) otherwise, until the end of the retention period.
(7) In paragraph (6), "the retention period" means the period comprising -
(b) any extension of that period under paragraph (8).
(8) The Regulator may, by a direction made before the end of the retention period (including any extension of it under this paragraph), extend it by such period not exceeding 12 months as the Regulator considers appropriate.
(b) neglects or refuses to produce, or secure the production of, any document when required to do so under Article 70, or (c) neglects or refuses to answer a question or to provide information when so required,
is guilty of an offence.
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding two years, or both.
Warrants
(ii) which has not been produced in compliance with that requirement,
(b) that there is on, or accessible from, any premises any document whose production could be so required and, if its production were so required, the document -
(ii) would be removed, or made inaccessible, from the premises, hidden, tampered with or destroyed, or
(c) that -
(ii) a person will do any act which constitutes a misuse or misappropriation of the assets of an occupational pension scheme or a personal pension scheme, (iii) a person is liable to pay a penalty under or by virtue of Article 10 of the 1995 Order (civil penalties) or section 164(4) of the Pension Schemes Act (civil penalties for breach of regulations), or under or by virtue of any provision in force in Great Britain corresponding to either of them, or (iv) a person is liable to be prohibited from being a trustee of an occupational or personal pension scheme under Article 3 of the 1995 Order (prohibition orders), including that Article as it applies by virtue of paragraph 1 of Schedule 1 to the 1999 Order (stakeholder schemes), or under or by virtue of any corresponding provisions in force in Great Britain,
and that there is on, or accessible from, any premises any document which relates to whether the offence has been committed, whether the act will be done or whether the person is so liable, and whose production could be required under Article 67 or 70 or any corresponding provision in force in Great Britain.
(2) A warrant under this Article shall authorise an inspector -
(b) to search the premises and -
(ii) take in relation to such a document any other steps which appear necessary for preserving it or preventing interference with it,
(c) to take copies of any such document,
(ii) in which it is legible or from which it can readily be produced in a legible form.
(3) In paragraph (1), any reference in sub-paragraph (a) or (b) to a document does not include any document which is relevant to whether a person has complied with -
(b) any provision in force in Great Britain which corresponds to that paragraph (3) or is made under provision corresponding to that paragraph (4),
and is not relevant to the exercise of the Regulator's functions for any other reason.
(b) any corresponding provision in force in Great Britain,
which might arise out of a failure to comply with any provision within paragraph (3)(a) or (b) is to be disregarded.
(b) otherwise, until the end of the retention period.
(9) In paragraph (8), "the retention period" means the period comprising -
(b) any extension of that period under paragraph (10).
(10) The Regulator may, by a direction made before the end of the retention period (including any extension of it under this paragraph), extend it by such period not exceeding 12 months as the Regulator considers appropriate.
(b) in a form from which it can readily be produced in a legible form.
(3) "Inspector" means a person appointed by the Regulator as an inspector. Offences of providing false or misleading information 75. - (1) Any person who knowingly or recklessly provides the Regulator with information which is false or misleading in a material particular is guilty of an offence if the information -
(ii) Article 59 (duty of trustees or managers to provide scheme return), (iii) Article 67 (provision of information), or (iv) Article 70 (inspection of premises: powers of inspectors),
(b) is provided in applying for registration of a pension scheme under Article 4 of the 1999 Order (register of stakeholder pension schemes), or
(2) Any person guilty of an offence under paragraph (1) is liable -
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding two years, or both.
Use of information
(b) otherwise held by the Regulator in the exercise of any of its functions,
may be used by the Regulator for the purposes of, or for any purpose connected with or incidental to, the exercise of its functions. Restricted information 77. - (1) Restricted information must not be disclosed -
(b) by any person who receives the information directly or indirectly from the Regulator.
(2) Paragraph (1) is subject to -
(b) Articles 66(9) and 78 to 83 and section 235 of the Pensions Act 2004 (c. 35).
(3) Subject to Article 83(4), restricted information may be disclosed with the consent of the person to whom it relates and (if different) the person from whom the Regulator obtained it.
(b) which is in the form of a summary or collection of information so framed as not to enable information relating to any particular person to be ascertained from it.
(5) Any person who discloses information in contravention of this Article is guilty of an offence and liable -
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding two years, or both.
Information supplied to the Regulator by corresponding overseas authorities
(b) for the purpose of enabling or assisting the Regulator to discharge its functions, or (c) by or on behalf of -
(ii) any public authority (within the meaning of section 6 of the Human Rights Act 1998 (c. 42)) which receives the information directly or indirectly from the Regulator,
for any of the purposes specified in section 17(2)(a) to (d) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (criminal proceedings and investigations).
(3) Section 18 of the Anti-terrorism, Crime and Security Act 2001 (restriction on disclosure of information for overseas purposes) has effect in relation to a disclosure authorised by paragraph (2) as it has effect in relation to a disclosure authorised by any of the provisions to which section 17 of that Act applies.
(ii) removing any person for the time being specified in the Schedule, or (iii) altering the functions for the time being specified in the Schedule in relation to any person, or
(b) by order restrict the circumstances in which, or impose conditions subject to which, disclosure may be made to any person for the time being specified in the Schedule.
Other permitted disclosures
(b) the Commissioners of Inland Revenue or their officers, or (c) the Secretary of State,
if the disclosure appears to the Regulator to be desirable or expedient in the interest of members of occupational pension schemes or personal pension schemes or in the public interest.
(ii) any public authority (within the meaning of section 6 of the Human Rights Act 1998 (c. 42)) which receives the information directly or indirectly from the Regulator,
for any of the purposes specified in section 17(2)(a) to (d) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (criminal proceedings and investigations),
(ii) the 1999 Order, (iii) the 1995 Order, or (iv) the Pension Schemes Act,
or any corresponding enactment in force in Great Britain, or any proceedings for breach of trust in relation to an occupational pension scheme,
(ii) section 7 or 8 of the Company Directors Disqualification Act 1986 (c. 46),
(d) in connection with any proceedings under -
(ii) the Insolvency Act 1986 (c. 45),
which the Regulator has instituted or in which it has a right to be heard,
(3) In paragraph (2)(f), "public servant" means an officer or servant of the Crown or of any prescribed authority.
(b) the Director of Public Prosecutions, (c) the Lord Advocate, (d) a procurator fiscal, or (e) a constable.
(5) Article 77 does not preclude the disclosure of restricted information in any case where the disclosure is required by or by virtue of a statutory provision.
(b) for the purpose of enabling or assisting the person to exercise any functions specified in relation to him in the second column of the Schedule.
(10) Before deciding whether to give its consent to such a disclosure as is mentioned in paragraph (8) or (9), the Regulator must take account of any representations made to it, by the person seeking to make the disclosure, as to the desirability of the disclosure or the necessity for it.
(b) with a view to the institution of, or otherwise for the purposes of, any criminal proceedings.
(5) In this Article "tax functions" has the same meaning as in section 182 of the Finance Act 1989. Publishing reports etc. 84. - (1) The Regulator may, if it considers it appropriate to do so in any particular case, publish a report of the consideration given by it to the exercise of its functions in relation to that case and the results of that consideration. (2) The publication of a report under paragraph (1) may be in such form and manner as the Regulator considers appropriate. (3) For the purposes of the law of defamation, the publication of any matter by the Regulator is privileged unless the publication is shown to be made with malice. Codes of practice 85. - (1) The Regulator may issue codes of practice -
(b) regarding the standards of conduct and practice expected from those who exercise such functions.
(2) The Regulator must issue one or more such codes of practice relating to the following matters -
(b) the discharge of the duty imposed by Article 64 (duty to notify Regulator of certain events); (c) the discharge of the duty imposed by Article 65 (duty to report breaches of the law); (d) the discharge of duties imposed on trustees or managers of occupational pension schemes by, or by virtue of, Part IV (scheme funding); (e) the discharge of the duties imposed by Articles 218 and 219 (member-nominated trustees and directors); (f) the obligations imposed by Articles 224 and 225 (requirements for knowledge and understanding: individual and corporate trustees); (g) the discharge of the duty imposed by Article 49(9)(b) of the 1995 Order (duty of trustees or managers of occupational pension schemes to report material failures by employers to pay contributions deducted from employee's earnings timeously); (h) the discharge of the duties imposed by Articles 67 to 67I of that Order (the subsisting rights provisions); (i) the discharge of the duty imposed by Article 86(1) of that Order (duty of trustees or managers of money purchase schemes to report failures to pay employer contributions etc. timeously); (j) the discharge of the duty imposed by section 107A(7A) of the Pension Schemes Act (duty of trustees or managers of personal pension schemes to report material failures to pay employer contributions timeously); (k) such other matters as are prescribed for the purposes of this Article.
(3) The Regulator may from time to time revise the whole or any part of a code of practice issued under this Article and issue that revised code.
(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.
(7) Articles 86 and 87 make provision about the procedure to be followed when a code of practice is issued or revoked.
(b) any other persons the Department requires it to consult.
(3) Having considered any representations made on the draft, the Regulator must make such modifications to it as it considers appropriate.
(b) to a code if the Department considers consultation inexpedient by reason of urgency.
(5) If the Regulator determines to proceed with a draft, it must send it to the Department which -
(b) if it does not approve of the draft, must publish details of its reasons for withholding approval.
(6) If, within the statutory period beginning with the day on which the draft code of practice is laid before the Assembly, the Assembly so resolves, no further proceedings may be taken on the draft, but without prejudice to the laying before the Assembly of a new draft. The Regulator's procedure in relation to its regulatory functions 88. - (1) The Regulator must determine the procedure that it proposes to follow in relation to the exercise of its regulatory functions. (2) For the purposes of this Part the "regulatory functions" of the Regulator are -
(b) the power to issue a third party notice under Article 10, (c) the reserved regulatory functions (see Schedule 2), (d) the power to issue a clearance statement under Article 38, (e) the power to issue a notice under Article 41(1) approving the details of arrangements, (f) the power to issue a clearance statement under Article 42, (g) the power to vary or revoke under Article 96 (to the extent that it does not fall within sub-paragraph (c)), (h) the power to make an order under Article 138(8), (i) the power to make an order under Article 198(4), (j) the power to grant or revoke authorisation under Article 264, (k) the power to grant or revoke approval under Article 265, (l) the power to issue a notice under Article 269(5), (m) the power by direction under Article 4(3)(a) of the 1999 Order to refuse to register a scheme under Article 4 of that Order, (n) the power to make an order under Article 7 of the 1995 Order appointing a trustee (to the extent that it does not fall within sub-paragraph (c)), (o) the power to make an order under Article 23 of that Order appointing an independent trustee, (p) the power to give directions under Article 72B of that Order (directions facilitating winding up), and (q) such other functions of the Regulator as may be prescribed.
(3) The Determinations Panel must determine the procedure to be followed by it in relation to any exercise by it on behalf of the Regulator of -
(b) where the Panel so determines to exercise a regulatory function, the power to exercise the function in question.
(4) The procedure determined under this Article -
(ii) Article 93 (special procedure), and
(b) may include such other procedural requirements as the Regulator or, as the case may be, the Panel considers appropriate.
(5) This Article is subject to -
(b) any regulations made by the Secretary of State under paragraph 19 of Schedule 1 to the Pensions Act 2004 (c. 35).
Publication of procedure in relation to regulatory functions
(b) an application is made under or by virtue of -
(ii) any prescribed provision of this or any other statutory provision,
for the Regulator to exercise a regulatory function.
(2) For the purposes of Article 91, references to the regulatory action under consideration in a particular case are -
(b) in a case falling within paragraph (1)(b), references to the exercise of the regulatory function which is the subject-matter of the application.
(3) Neither Article 91 (standard procedure) nor Article 93 (special procedure) applies in relation to a determination whether to exercise a regulatory function on a review under Article 94 (compulsory review of regulatory action).
(b) those persons to have an opportunity to make representations, (c) the consideration of any such representations and the determination whether to take the regulatory action under consideration, (d) the giving of notice of the determination to such persons as appear to the Regulator to be directly affected by it (a "determination notice"), (e) the determination notice to contain details of the right of referral to the Tribunal under paragraph (3),s (f) the form and further content of warning notices and determination notices and the manner in which they are to be given, and (g) the time limits to be applied at any stage of the procedure.
(3) Where the standard procedure applies, the determination which is the subject-matter of the determination notice may be referred to the Tribunal by -
(b) any other person who appears to the Tribunal to be directly affected by the determination.
(4) Paragraph (3) does not apply where the determination which is the subject-matter of the determination notice is a determination to issue a clearance statement under Article 38 or 42.
(b) if the determination is so referred, until the reference, and any appeal against the Tribunal's determination, has been finally disposed of.
(6) Paragraph (5) does not apply where the determination is a determination to exercise any of the following functions -
(b) the power to make a direction under Article 73(10) extending the retention period for documents taken into possession under that Article; (c) the power to make an order under Article 138(8); (d) the power to make an order under Article 198(4); (e) the power to grant or revoke authorisation under Article 264; (f) the power to grant or revoke approval under Article 265; (g) the power to issue a notice under Article 269(5); (h) the power to make an order under Article 3(1) of the 1995 Order prohibiting a person from being a trustee; (i) the power to make an order under Article 3(3) of that Order revoking such an order; (j) the power to make an order under Article 4(1) of that Order suspending a trustee; (k) the power to make an order under Article 4(2) of that Order extending the period for which an order under Article 4(1) of that Order has effect; (l) the power to make an order under Article 4(5) of that Order revoking an order under Article 4(1) of that Order suspending a trustee; (m) the power to make an order under Article 7 of that Order appointing a trustee; (n) the power under Article 9 of that Order to exercise by order the same jurisdiction and powers as the High Court for vesting property in, or transferring property to, trustees in consequence of the appointment or removal of a trustee; (o) the power to make an order under Article 23 of that Order appointing an independent trustee; (p) the power under Article 29(5) of that Order to give a notice waiving a disqualification under Article 29 of that Order; (q) the power under Article 30(2) of that Order to exercise by order the same jurisdiction and powers as the High Court for vesting property in, or transferring property to, the trustees where a trustee becomes disqualified under Article 29 of that Order; (r) the power to give directions under Article 72B of that Order facilitating a winding up; (s) the power by direction under section 95(4) of the Pension Schemes Act to grant an extension of the period within which the trustees or managers of a scheme are to carry out certain duties; (t) the power by direction under section 97J(2) of that Act to extend the period for compliance with a transfer notice; (u) such other regulatory functions as may be prescribed; (v) the power under Article 96(1)(b) to vary or revoke in relation to the exercise of any of the regulatory functions mentioned in sub-paragraphs (a) to (u) other than that mentioned in sub-paragraph (i) or (l).
Special procedure: applicable cases
(b) a case falling within paragraph (3), and (c) a case falling within paragraph (4).
(2) A case falls within this paragraph if -
(ii) the assets of such a scheme,
(b) the Regulator accordingly dispenses with the giving of a warning notice and an opportunity to make representations as described in Article 91(2)(a) and (b), and
(ii) the assets of such a scheme.
(3) A case falls within this paragraph if -
(b) before it has considered the representations of those persons to whom the warning notice is given, the Regulator determines to exercise the function immediately on the basis that it is necessary to do so because there is, or the Regulator considers it likely that if the function were not exercised immediately there would be, an immediate risk to -
(ii) the assets of such a scheme.
(4) A case falls within this paragraph if the Regulator -
(ii) is not a function listed in Article 91(6) (functions which may be exercised immediately under the standard procedure),
(b) considers the representations of those persons to whom the warning notice is given, and
(ii) the assets of such a scheme.
(5) The regulatory functions referred to in paragraphs (2), (3) and (4) are -
(b) the power to make a freezing order under Article 19; (c) the power to make an order under Article 21(3) extending the period for which a freezing order has effect; (d) the power to make an order under Article 22 validating action taken in contravention of a freezing order; (e) the power to make an order under Article 24 directing that specified steps are taken; (f) the power to make an order under Article 26 giving a direction where a freezing order ceases to have effect; (g) the power to make an order under Article 27(3) directing the notification of members; (h) the power to make an order under Article 210 modifying a scheme, giving directions or imposing a schedule of contributions; (i) the power to make an order under Article 3(1) of the 1995 Order prohibiting a person from being a trustee; (j) the power to make an order under Article 3(3) of that Order revoking such an order; (k) the power to make an order under Article 4(1) of that Order suspending a trustee; (l) the power to make an order under Article 4(5) of that Order revoking such an order; (m) the power to make an order under Article 7 of that Order appointing a trustee; (n) the power under Article 9 of that Order to exercise by order the same jurisdiction and powers as the High Court for vesting property in, or transferring property to, trustees in consequence of the appointment or removal of a trustee; (o) the power to make an order under Article 11 of that Order directing or authorising an occupational pension scheme to be wound up; (p) the power to make an order under Article 23 of that Order appointing an independent trustee; (q) the power under Article 29(5) of that Order to give a notice waiving a disqualification under Article 29 of that Order; (r) the power under Article 30(2) of that Order to exercise by order the same jurisdiction and powers as the High Court for vesting property in, or transferring property to, the trustees where a trustee becomes disqualified under Article 29 of that Order; (s) the power to make an order under Article 67G(2) of that Order by virtue of which any modification of, or grant of rights under, an occupational pension scheme is void to any extent; (t) the power to make an order under Article 67H(2) of that Order prohibiting, or specifying steps to be taken in relation to, the exercise of a power to modify an occupational pension scheme; (u) such other regulatory functions as may be prescribed; (v) the power under Article 96(1)(b) to vary or revoke in relation to the exercise of any of the regulatory functions mentioned in sub-paragraphs (a) to (u) other than that mentioned in sub-paragraph (j) or (l).
Special procedure
(b) the determination notice to contain details of the requirement for the Regulator to review the determination under Article 94(1) and of any subsequent right of referral to the Tribunal under Article 94(7), (c) the persons to whom the determination notice was given (as required under sub-paragraph (a)) to have an opportunity to make representations in relation to the determination before it is reviewed under Article 94(1), (d) the consideration of any such representations before the determination on the review, (e) the giving of a notice in accordance with Article 94(4) of the determination on the review (a "final notice"), (f) the final notice to contain details of the right of referral to the Tribunal under Article 94(7), (g) the form and further content of determination notices and final notices and the manner in which they are to be given, and (h) the time limits to be applied at any stage of the procedure.
Compulsory review
(b) confirm, vary or revoke any order, notice or direction made, issued or given as a result of the determination, (c) substitute a different determination, order, notice or direction, (d) deal with the matters arising on the review as if they had arisen on the original determination, and (e) make savings and transitional provision.
(4) When the Regulator has completed a review under this Article a notice of its determination on the review must be given to such persons as appear to it to be directly affected by its determination on the review.
(b) the Regulator has considered any such representations before it makes its determination on the review.
(6) Paragraph (5) does not apply if the regulatory function is listed in Article 92(5) and the Regulator determines to exercise it immediately on the basis that it is necessary to do so because there is, or the Regulator considers it likely that if the function were not exercised immediately there would be, an immediate risk to -
(b) the assets of such a scheme.
(7) The determination which is the subject-matter of a final notice may be referred to the Tribunal by -
(b) any other person who appears to the Tribunal to be directly affected by the determination.
(8) Where that determination is a determination to exercise a different regulatory function to the function which was the subject-matter of the determination notice, the Regulator must not exercise the regulatory function -
(b) if the determination is so referred, until the reference, and any appeal against the Tribunal's determination, has been finally disposed of.
(9) Paragraph (8) does not apply where -
(b) the regulatory function in question is a function listed in Article 92(5) (functions which may be exercised immediately under the special procedure) and the Regulator determines to exercise it immediately on the basis described in paragraph (6).
(10) The functions of the Regulator under this Article are exercisable on behalf of the Regulator by the Determinations Panel (and are not otherwise exercisable by or on behalf of the Regulator).
(ii) on a review under Article 94, and
(b) when exercising the regulatory function in question.
(2) Those matters are -
(b) the interests of such persons as appear to the Regulator to be directly affected by the exercise.
Powers to vary or revoke orders, notices or directions etc.
(b) any order, notice or direction made, issued or given by the Regulator in the exercise of a regulatory function.
(2) Paragraph (1)(b) does not apply to -
(b) an order under Article 4(5) of that Order revoking a suspension order under that Article, (c) a direction under Article 4(3) of the 1999 Order refusing to register a scheme under that Article or removing a scheme from the register of stakeholder pension schemes, or (d) such other orders, notices or directions made, issued or given by the Regulator, in the exercise of a regulatory function, as may be prescribed.
(3) A variation or revocation of an order, a notice or a direction must be made by an order, notice or direction (as the case may be).
(b) is in addition to any such power which is conferred on the Regulator by, or by virtue of, this or any other statutory provision.
References to the Tribunal
(b) in the case of a reference under Article 94(7) (referral following determination under special procedure), during the period of 28 days beginning with the day on which the final notice in question is given, or (c) in either case, during such other period as may be specified in rules made under section 102 of the Pensions Act 2004 (c. 35).
(2) Subject to rules made under section 102 of the Pensions Act 2004, the Tribunal may allow a reference to be made after the end of the relevant period specified in or under paragraph (1).
(b) to vary or revoke the Regulator's determination, and any order, notice or direction made, issued or given as a result of it; (c) to substitute a different determination, order, notice or direction; (d) to make such savings and transitional provision as the Tribunal considers appropriate.
(7) The Regulator must act in accordance with the determination of, and any direction given by, the Tribunal (and accordingly Articles 91 to 94 (standard and special procedure) do not apply).
(b) if it is refused by the Tribunal, by the Court of Appeal.
(3) If, on an appeal under paragraph (1), the Court considers that the decision of the Tribunal was wrong in law, it may -
(b) itself make a determination.
(4) An appeal may not be brought from a decision of the Court of Appeal under paragraph (3) except with the leave of -
(b) the House of Lords.
(5) Rules made under section 102 of the Pensions Act 2004 (c. 35) may make provision for regulating or prescribing any matters incidental to or consequential on an appeal under this Article.
(b) for rehearing and determination under that Article by a differently constituted Tribunal.
Disclosure of information
Board's functions and supplementary powers etc. 101. - (1) Articles 158 and 171 make provision for contributions to the Pension Protection Fund and the Fraud Compensation Fund to be levied by the Board. (2) The Board may do anything which -
(b) is incidental or conducive to their exercise.
(3) Schedule 4 makes further provision about the Board. Grants 102. The Department may pay the Board such sums as the Department may determine towards any of the Board's expenses, other than expenditure which by virtue of section 173(3) or 188(3) of the Pensions Act 2004 (c. 35) is payable out of -
(b) the Fraud Compensation Fund.
Administration levy
(b) any expenditure of the Department under Article 102 or of the Secretary of State under section 116 of the Pensions Act 2004 (c. 35).
(2) An administration levy is payable to the Department by or on behalf of -
(b) any other prescribed person.
(3) An administration levy is payable at the prescribed rate and at prescribed times.
(b) the circumstances in which any such amount may be waived.
Duty to notify insolvency events in respect of employers 104. - (1) This Article applies where, in the case of an occupational pension scheme, an insolvency event occurs in relation to the employer. (2) The insolvency practitioner in relation to the employer must give a notice to that effect within the notification period to -
(b) the Regulator, and (c) the trustees or managers of the scheme.
(3) For the purposes of paragraph (2) the "notification period" is the prescribed period beginning with the later of -
(b) the date the insolvency practitioner becomes aware of the existence of the scheme.
(4) A notice under this Article must be in such form and contain such information as may be prescribed.
(2) An insolvency event occurs in relation to an individual where -
(b) the nominee in relation to a proposal for a voluntary arrangement under Chapter 2 of Part VIII of the Insolvency Order submits a report to the Court under Article 230(1) or 230A(3) of that Order which states that in his opinion a meeting of the individual's creditors should be summoned to consider the debtor's proposal; (c) a deed of arrangement made by, for, or in respect of the affairs of the individual is registered under Chapter 1 of Part VIII of that Order; (d) he executes a trust deed for his creditors or enters into a composition contract; (e) he has died and an insolvency administration order is made in respect of his estate in accordance with an order under Article 365 of that Order.
(3) An insolvency event occurs in relation to a company where -
(b) the directors of the company file with the Court documents and statements in accordance with paragraph 18(1) of Schedule A1 to that Order (moratorium where directors propose voluntary arrangement); (c) an administrative receiver within the meaning of Article 5 of that Order is appointed in relation to the company; (d) the company enters administration within the meaning of paragraph 2(2)(b) of Schedule B1 to that Order; (e) a resolution is passed for a voluntary winding up of the company without a declaration of solvency under Article 75 of that Order; (f) a meeting of creditors is held in relation to the company under Article 81 of that Order (creditors' meeting which has the effect of converting a members' voluntary winding up into a creditors' voluntary winding up); (g) an order for the winding up of the company is made by the Court under Part V or VI of that Order.
(4) An insolvency event occurs in relation to a partnership where -
(b) the nominee in relation to a proposal for a voluntary arrangement under Part II of that Order (as applied by an order under Article 364 of that Order) submits a report to the Court under Article 15 of that Order (procedure where nominee is not the liquidator or administrator) which states that in his opinion meetings of the members of the partnership and the partnership's creditors should be summoned to consider the proposal; (c) the members of the partnership file with the Court documents and statements in accordance with paragraph 18(1) of Schedule A1 to that Order (moratorium where directors propose voluntary arrangement) (as applied by an order under Article 364 of that Order); (d) an administration order under Part III of that Order (as applied by Article 364 of that Order) is made in relation to the partnership.
(5) An insolvency event also occurs in relation to a person where an event occurs which is a prescribed event in relation to such a person.
(b) in such circumstances as may be prescribed, a person of a prescribed description.
(10) In this Article -
(11) In applying Article 3 of the Insolvency Order under paragraph (9), Article 3(5) of that Order (which includes provision that nothing in the Article applies to anything done by the official receiver) must be ignored.
Insolvency practitioner's duty to issue notices confirming status of scheme
(b) if he is able to confirm that a scheme rescue has occurred, issue a notice to that effect (a "withdrawal notice").
(3) Paragraph (4) applies where -
(b) a prescribed event occurs.
(4) If a person who was acting as an insolvency practitioner in relation to the employer immediately before this paragraph applies has not been able to confirm in relation to the scheme -
(b) that a scheme rescue has occurred,
he must issue a notice to that effect.
(b) a person is able to confirm that a scheme rescue is not possible, in relation to such a scheme if, and only if, he is able to confirm such matters as are prescribed for the purposes of this sub-paragraph.
(6) Where an insolvency practitioner or former insolvency practitioner in relation to the employer issues a notice under this Article, he must give a copy of that notice to -
(b) the Regulator, and (c) the trustees or managers of the scheme.
(7) A person must comply with an obligation imposed on him by paragraph (2), (4) or (6) as soon as reasonably practicable.
(b) to contain prescribed information.
Approval of notices issued under Article 106
(b) that the notice complies with any requirements imposed by virtue of paragraph (8) of that Article.
(4) Where the Board makes a determination for the purposes of paragraph (2), it must issue a determination notice and give a copy of that notice to -
(b) the trustees or managers of the scheme, (c) the insolvency practitioner or the former insolvency practitioner who issued the Article 106 notice, (d) any insolvency practitioner in relation to the employer (who does not fall within sub-paragraph (c)), and (e) if there is no insolvency practitioner in relation to the employer, the employer.
(5) In paragraph (4) "determination notice" means a notice which is in the prescribed form and contains such information about the determination as may be prescribed. Board's duty where there is a failure to comply with Article 106 108. - (1) This Article applies where, in relation to an occupational pension scheme -
(b) an insolvency practitioner or former insolvency practitioner in relation to the employer fails to issue a notice under Article 106 and the Board is satisfied that such a notice ought to have been issued under that Article.
(2) The obligations on the insolvency practitioner or former insolvency practitioner imposed by paragraphs (2) and (4) of Article 106 are to be treated as obligations imposed on the Board and the Board must accordingly issue a notice as required under that Article.
(b) the trustees or managers of the scheme, (c) the insolvency practitioner or former insolvency practitioner mentioned in paragraph (1), (d) any insolvency practitioner in relation to the employer (who does not fall within sub-paragraph (c)), and (e) if there is no insolvency practitioner in relation to the employer, the employer.
(5) Where the Board -
(b) is satisfied that the notice ought to have been issued at an earlier time,
it must specify that time in the notice and the notice is to have effect as if it had been issued at that time.
(b) the period within which the issue of the determination notice under that Article may be reviewed by virtue of Chapter 6 has expired, and (c) if the issue of the determination notice is so reviewed -
(ii) any reference to the PPF Ombudsman in respect of the issue of the notice, and (iii) any appeal against his determination or directions,
has been finally disposed of and the determination notice has not been revoked, varied or substituted.
(2) Where a notice is issued under Article 106 by the Board by virtue of Article 108, the notice is not binding until -
(b) if the issue of the notice is so reviewed -
(ii) any reference to the PPF Ombudsman in respect of the issue of the notice, and (iii) any appeal against his determination or directions,
has been finally disposed of and the notice has not been revoked, varied or substituted.
(3) Where a notice issued under Article 106 becomes binding, the Board must as soon as reasonably practicable give a notice to that effect together with a copy of the binding notice to -
(b) the trustees or managers of the scheme, (c) the insolvency practitioner or former insolvency practitioner who issued the notice under Article 106 or, where that notice was issued by the Board by virtue of Article 108, the insolvency practitioner or former insolvency practitioner mentioned in paragraph (1) of that Article, (d) any insolvency practitioner in relation to the employer (who does not fall within sub-paragraph (c)), and (e) if there is no insolvency practitioner in relation to the employer, the employer.
(4) A notice under paragraph (3) -
(b) where it is given in relation to a withdrawal notice issued under Article 106(2)(b) which has become binding, must state the time from which the Board ceases to be involved with the scheme (see Article 133).
Eligible schemes 110. - (1) Subject to the following provisions of this Article, in this Part references to an "eligible scheme" are to an occupational pension scheme which -
(b) is not a prescribed scheme or a scheme of a prescribed description.
(2) A scheme is not an eligible scheme if it is being wound up immediately before the day appointed by the Department by order for the purposes of this paragraph.
(b) after the beginning of that period, the scheme ceases to be an eligible scheme,
the scheme is, in such circumstances as may be prescribed, to be treated as remaining an eligible scheme for the purposes of such of the provisions mentioned in paragraph (4) as may be prescribed.
(b) any other provision of this Order in which "eligible scheme" has the meaning given by this Article.
(5) Regulations may also provide that a scheme which would be an eligible scheme in the absence of this paragraph is not an eligible scheme in such circumstances as may be prescribed. Duty to assume responsibility for schemes following insolvency event 111. - (1) This Article applies where a qualifying insolvency event has occurred in relation to the employer in relation to an eligible scheme. (2) The Board must assume responsibility for the scheme in accordance with this Chapter if -
(b) after the relevant time a scheme failure notice is issued under Article 106(2)(a) in relation to the scheme and that notice becomes binding, and (c) a withdrawal event has not occurred in relation to the scheme in respect of a withdrawal notice which has been issued during the period -
(ii) ending immediately before the issuing of the scheme failure notice under Article 106(2)(a),
and the occurrence of such a withdrawal event in respect of a withdrawal notice issued during that period is not a possibility (see Article 133).
(3) For the purposes of this Article, in relation to an eligible scheme an insolvency event ("the current event") in relation to the employer is a qualifying insolvency event if -
(b) it -
(ii) does not occur within an assessment period (see Article 116) in relation to the scheme which began before the occurrence of the current event.
(4) For the purposes of this Article -
(b) "the relevant time" means the time immediately before the qualifying insolvency event occurs.
(5) This Article is subject to Articles 130 and 131 (cases where Board must refuse to assume responsibility for a scheme).
(b) receive a notice from the Board under paragraph (5)(a) of that Article (an "Article 113 notification").
(2) The Board must assume responsibility for the scheme in accordance with this Chapter if -
(b) after the relevant time the Board issues a scheme failure notice under Article 114(2) in relation to the scheme and that notice becomes binding, and (c) a withdrawal event has not occurred in relation to the scheme in respect of a withdrawal notice which has been issued during the period -
(ii) ending immediately before the issuing of the scheme failure notice under Article 114(2),
and the occurrence of such a withdrawal event in respect of a withdrawal notice issued during that period is not a possibility (see Article 133).
(3) In paragraph (2) -
(b) "the relevant time" means the time immediately before the Article 113 application was made or, as the case may be, the Article 113 notification was received.
(4) An application under Article 113(1) or notification under Article 113(5)(a) is to be disregarded for the purposes of paragraph (1) if it is made or given during an assessment period (see Article 116) in relation to the scheme which began before the application was made or notification was given.
(b) the prescribed requirements are met in relation to the employer,
they must make an application to the Board for it to assume responsibility for the scheme under Article 112.
(b) the employer.
(3) An application under paragraph (1) must -
(b) be made within the prescribed period.
(4) Where the Regulator becomes aware that -
(b) the requirements mentioned in paragraph (1)(b) are met in relation to the employer,
it must give the Board a notice to that effect.
(b) give the employer a copy of that notice.
(6) The duty imposed by paragraph (1) does not apply where the trustees or managers of an eligible scheme become aware as mentioned in that paragraph by reason of a notice given to them under paragraph (5).
(b) is notified by the Regulator under Article 113(4).
(2) If the Board is able to confirm that a scheme rescue is not possible, it must as soon as reasonably practicable issue a notice to that effect (a "scheme failure notice").
(b) the trustees or managers of the scheme, and (c) the employer.
(5) For the purposes of this Article -
(b) the Board is able to confirm that a scheme rescue is not possible in relation to such a scheme if, and only if, it is able to confirm such matters as are prescribed for the purposes of this sub-paragraph.
(6) For the purposes of this Part a notice issued under paragraph (2) or (3) is not binding until -
(b) if the issue of the notice is so reviewed -
(ii) any reference to the PPF Ombudsman in respect of the issue of the notice, and (iii) any appeal against his determination or directions,
has been finally disposed of and the notice has not been revoked, varied or substituted.
(7) Where a notice issued under paragraph (2) or (3) becomes binding, the Board must as soon as reasonably practicable give a notice to that effect together with a copy of the binding notice to -
(b) the trustees or managers of the scheme, and (c) the employer.
(8) Notices under this Article must be in the prescribed form and contain such information as may be prescribed.
(b) liabilities of the scheme which are not liabilities to, or in respect of, its members, and (c) the estimated cost of winding up the scheme.
(2) For the purposes of determining the cost of securing benefits within paragraph (1)(a), references in Articles 124 to 126 and Schedule 6 (pension compensation provisions) to the assessment date are to be read as references to the date on which the time immediately after the relevant time falls. Assessment periods 116. - (1) In this Part references to an assessment period are to be construed in accordance with this Article. (2) Where, in relation to an eligible scheme, a qualifying insolvency event occurs in relation to the employer, an assessment period -
(b) ends when -
(ii) the trustees or managers of the scheme receive a transfer notice under Article 144, or (iii) the conditions in Article 138(2) (no scheme rescue but sufficient assets to meet protected liabilities etc.) are satisfied in relation to the scheme,
whichever first occurs.
(3) In paragraph (2) "qualifying insolvency event" has the meaning given by Article 111(3).
(b) ends when -
(ii) the trustees or managers of the scheme receive a transfer notice under Article 144, or (iii) the conditions in Article 138(2) (no scheme rescue but sufficient assets to meet protected liabilities etc.) are satisfied in relation to the scheme,
whichever first occurs.
(5) For the purposes of paragraph (4) an application under Article 113(1) or notification under Article 113(5)(a) is to be disregarded if it is made or given during an assessment period in relation to the scheme which began before the application was made or notification was given.
(7) Paragraph (5) does not prevent the accrual of money purchase benefits to the extent that they are derived from income or capital gains arising from the investment of payments which are made by, or in respect of, a member of the scheme.
(10) Any action taken in contravention of this Article is void.
(b) the incurring of expenditure, (c) the instigation or conduct of legal proceedings, and (d) such other matters as may be prescribed.
(3) In paragraph (2) -
(ii) the employer in relation to the scheme, or (iii) such other persons as may be prescribed, and
(b) the reference to the assets of the scheme is a reference to those assets excluding any assets representing the value of any rights in respect of money purchase benefits under the scheme rules.
(4) The Board may revoke or vary any direction under this Article.
(b) no other steps may be taken to discharge any liability of the scheme to or in respect of a member of the scheme in respect of -
(ii) such other liabilities as may be prescribed.
(5) Paragraph (4) -
(b) applies whether or not the scheme was being wound up immediately before the assessment period or began winding up by virtue of paragraph (3).
(6) Paragraph (7) applies where, on the commencement of the assessment period -
(b) he becomes a person to whom Chapter 5 of Part IV of the Pension Schemes Act (early leavers: cash transfer sums and contribution refunds) applies.
(7) Where this paragraph applies, during the assessment period -
(b) no duty imposed by that Chapter may be discharged.
(8) Where a person is entitled to a pension credit derived from another person's shareable rights (within the meaning of Chapter 1 of Part V of the 1999 Order (sharing of rights under pension arrangements)) under the scheme, nothing in paragraph (4) prevents the trustees or managers of the scheme discharging their liability in respect of the credit in accordance with that Chapter.
(b) the trustees or managers of the scheme, (c) any insolvency practitioner in relation to the employer or, if there is no such insolvency practitioner, the employer, and (d) any other person who appears to the Board to be directly affected by the determination.
(3) A notice under paragraph (2) must contain a statement of the Board's reasons for the determination.
(ii) the period within which the issue of that notice may be reviewed by virtue of Chapter 6 has expired, and
(b) if the issue of the notice is so reviewed, until -
(ii) any reference to the PPF Ombudsman in respect of the issue of the notice, and (iii) any appeal against his determination or directions,
has been finally disposed of.
(5) In paragraph (1) the reference to the assets of the scheme is a reference to those assets excluding any assets representing the value of any rights in respect of money purchase benefits under the scheme rules.
(b) the assessment date referred to in Schedule 6 were the date on which the assessment period began.
(3) But where, on the commencement of the assessment period -
(b) he becomes a person to whom Chapter 5 of Part IV of the Pension Schemes Act (early leavers: cash transfer sums and contribution refunds) applies,
no benefits are payable to or in respect of him under the scheme during the assessment period.
(b) the commencement of a member's pension or payment of a member's lump sum or other benefits is, in such circumstances and on such terms and conditions as may be prescribed, to be postponed for the whole or any part of the assessment period for which he continues in employment after attaining normal pension age.
(11) For the purposes of paragraph (10) -
(b) where different ages are so specified in relation to different parts of a pension or other benefit -
(ii) in relation to a part of a pension or other benefit, the reference in that paragraph to normal pension age is to be read as a reference to the age specified in the scheme rules as the earliest age at which that part becomes so payable.
(12) Regulations may provide that, in prescribed circumstances, where -
(b) during the assessment period, a person becomes entitled under the scheme rules to a benefit of a prescribed description in respect of the member,
the benefit, or any part of it, is, for the purposes of paragraph (2), to be treated as having become payable before the commencement of the assessment period.
(b) if earlier -
(ii) where no such order is made during that period, the time when the assessment period ends because the conditions in Article 138(2) or (5) are satisfied,
that amount, together with the appropriate interest on it, falls to be repaid by the trustees or managers of the scheme to the Board at that time.
(4) No loan may be made under paragraph (2) after the time mentioned in paragraph (3)(b)(i). Reviewable ill health pensions 124. - (1) This Article applies where there is an assessment period in relation to an eligible scheme. (2) The Board may review a reviewable ill health pension in respect of a member if -
(b) the member did not attain normal pension age in respect of the pension before the assessment date, and (c) the pension is attributable to the member's pensionable service.
(3) An ill health pension in respect of a member is reviewable for the purposes of paragraph (2) if the member is entitled to the pension by reason of an award under the scheme rules ("the award") which was made -
(b) before the end of the prescribed period beginning with the assessment date, in response to an application made before that date.
(4) Where -
(b) the trustees or managers of the scheme failed to decide the application before the end of the period mentioned in paragraph (3)(b),
(5) Where -
(ii) was made before that date but not decided by the trustees or managers of the scheme before the end of the period mentioned in paragraph (3)(b), and
(b) in the absence of this paragraph, the award would take effect before the assessment date,
the award is, for the purposes of determining the compensation payable under this Chapter in a case where the Board assumes responsibility for the scheme, to be treated as taking effect after the date on which the decision to make the award was made.
(b) that the Board is satisfied -
(ii) that, at the time that decision was made, the member knew or could reasonably have been expected to know of that fact and that it was relevant to the decision, and (iii) that, had the trustees or managers known about, or not been mistaken as to, that fact, they could not reasonably have decided to make the award, and
(c) that the Board is not satisfied that the criteria in the admissible rules governing entitlement to early payment of pension on grounds of ill health were satisfied in respect of the member at any time after that decision but before the assessment date.
(4) For the purposes of paragraph (2) "the relevant date" means the date during the assessment period on which a scheme valuation in relation to the scheme becomes binding.
(b) within a reasonable period beginning with the assessment date or, where the decision to make the award was made at a later date, that date.
(6) Regulations made for the purposes of paragraph (2) may, in particular, include provision applying any provision of Schedule 6 with such modifications as may be prescribed.
(b) if no such compensation would have been so payable at that date, nil;
(2) For the purposes of Article 124(4) -
(b) sub-paragraphs (2) and (3) of paragraph 34 of Schedule 6 as they apply by virtue of that definition,
have effect as if the references in those provisions to the admissible rules were references to the scheme rules. Board's obligation to obtain valuation of assets and protected liabilities 127. - (1) This Article applies in a case within paragraph (1) of Article 111 or 112. (2) For the purposes of determining whether the condition in paragraph (2)(a) of the Article in question is satisfied, the Board must, as soon as reasonably practicable, obtain an actuarial valuation of the scheme as at the relevant time. (3) For those purposes, regulations may provide that any of the following are to be regarded as assets or protected liabilities of the scheme at the relevant time if prescribed requirements are met -
(b) an obligation arising under financial support for the scheme (within the meaning of Article 41) put in place during the pre-approval period in accordance with a financial support direction issued under Article 39; (c) an obligation imposed by a restoration order under Article 48 during the pre-approval period in respect of a transaction involving assets of the scheme.
(4) For the purposes of this Article, regulations may prescribe how -
(b) their amount or value,
are to be determined, calculated and verified.
(b) a debt due to the trustees or managers of the scheme by virtue of a contribution notice issued under Article 34, 43 or 51, (c) an obligation arising under financial support for the scheme (within the meaning of Article 41) put in place in accordance with a financial support direction issued under Article 39, or (d) an obligation imposed by a restoration order made under Article 48 in respect of a transaction involving assets of the scheme,
account must be taken in the prescribed manner of prescribed events which occur during the pre-approval period.
(ii) is prepared and signed by -
(b) a person approved by the Department,
(b) "the pre-approval period", in relation to the scheme, means the period which -
(ii) ends immediately before the time the Board first approves a valuation of the scheme under Article 128 after the relevant time,
(c) "the relevant time" -
(ii) in a case within paragraph (1) of Article 112, has the meaning given in paragraph (3)(b) of that Article, and
(d) references to "assets" do not include assets representing the value of any rights in respect of money purchase benefits under the scheme rules.
Approval of valuation
(b) give a copy of the valuation to -
(ii) the trustees or managers of the scheme, and (iii) any insolvency practitioner in relation to the employer or, if there is no such insolvency practitioner, the employer.
(3) Where the Board is not so satisfied, it must obtain another valuation under that Article.
(b) the period within which the approval may be reviewed by virtue of Chapter 6 has expired, and (c) if the approval is so reviewed -
(ii) any reference to the PPF Ombudsman in respect of the approval, and (iii) any appeal against his determination or directions,
has been finally disposed of.
(2) Subject to Article 156(3) and (4) (treatment of fraud compensation payments), for the purposes of determining whether or not the condition in Article 111(2)(a) or, as the case may be, 112(2)(a) (condition that scheme assets are less than protected liabilities) is satisfied in relation to a scheme, a binding valuation is conclusive.
(b) the trustees or managers of the scheme, and (c) any insolvency practitioner in relation to the employer or, if there is no such insolvency practitioner, the employer.
(4) A notice under paragraph (3) must be in the prescribed form and contain the prescribed information. Schemes which become eligible schemes 130. - (1) Regulations may provide that where the Board is satisfied that an eligible scheme was not such a scheme throughout such period as may be prescribed, the Board must refuse to assume responsibility for the scheme under this Chapter. (2) Where, by virtue of paragraph (1), the Board is required to refuse to assume responsibility for a scheme, it -
(b) give a copy of that notice to -
(ii) the trustees or managers of the scheme, and (iii) any insolvency practitioner in relation to the employer or, if there is no such insolvency practitioner, the employer.
(3) For the purposes of this Part a withdrawal notice issued by virtue of this Article is not binding until -
(b) if the issue of the notice is so reviewed -
(ii) any reference to the PPF Ombudsman in respect of the issue of the notice, and (iii) any appeal against his determination or directions,
has been finally disposed of and the notice has not been revoked, varied or substituted.
(4) Where a withdrawal notice issued by virtue of this Article becomes binding, the Board must as soon as reasonably practicable give a notice to that effect together with a copy of the binding notice to -
(b) the trustees or managers of the scheme, and (c) any insolvency practitioner in relation to the employer or, if there is no such insolvency practitioner, the employer.
(5) Notices under this Article must be in the prescribed form and contain such information as may be prescribed.
(b) the employer in relation to the new scheme was, at the date of establishment of that scheme, also the employer in relation to a scheme established before the new scheme ("the old scheme"), (c) a transfer or transfers of, or a transfer payment or transfer payments in respect of, any rights of members under the old scheme has or have been made to the new scheme, and (d) the main purpose or one of the main purposes of establishing the new scheme and making the transfer or transfers, or transfer payment or transfer payments, was to enable those members to receive compensation under the pension compensation provisions in respect of their rights under the new scheme in circumstances where, in the absence of the transfer or transfers, regulations under Article 130 would have operated to prevent such payments in respect of their rights under the old scheme.
(2) Where, under paragraph (1), the Board is required to refuse to assume responsibility for a scheme, it -
(b) give a copy of that notice to -
(ii) the trustees or managers of the scheme, and (iii) any insolvency practitioner in relation to the employer or, if there is no such insolvency practitioner, the employer.
(3) For the purposes of this Part a withdrawal notice issued under this Article is not binding until -
(b) if the issue of the notice is so reviewed -
(ii) any reference to the PPF Ombudsman in respect of the issue of the notice, and (iii) any appeal against his determination or directions,
has been finally disposed of and the notice has not been revoked, varied or substituted.
(4) Where a withdrawal notice issued under this Article becomes binding, the Board must as soon as reasonably practicable give a notice to that effect together with a copy of the binding notice to -
(b) the trustees or managers of the scheme, and (c) any insolvency practitioner in relation to the employer or, if there is no such insolvency practitioner, the employer.
(5) Notices under this Article must be in the prescribed form and contain such information as may be prescribed.
(b) a withdrawal event has not occurred in relation to the scheme in respect of a withdrawal notice which has been issued during the period -
(ii) ending immediately before the notice under Article 106(4) becomes binding,
and the occurrence of such a withdrawal event in respect of a withdrawal notice issued during that period is not a possibility (see Article 133).
(2) The Board must determine whether any insolvency event -
(b) is likely to so occur before the end of the period of six months beginning with the date on which this Article applies.
(3) If the Board determines under paragraph (2) that no insolvency event has occurred or is likely to occur as mentioned in that paragraph, it must issue a notice to that effect (a "withdrawal notice").
(b) no further insolvency event occurs in relation to the employer during that period,
the Board must issue a notice to that effect (a "withdrawal notice").
(b) the trustees or managers of the scheme, and (c) the employer.
(6) For the purposes of this Part, a withdrawal notice issued under this Article is not binding until -
(b) if the issue of the notice is so reviewed -
(ii) any reference to the PPF Ombudsman in respect of the issue of the notice, and (iii) any appeal against his determination or directions,
has been finally disposed of and the notice has not been revoked, varied or substituted.
(7) Where a withdrawal notice issued under this Article becomes binding, the Board must as soon as reasonably practicable give a notice to that effect together with a copy of the binding notice to -
(b) the trustees or managers of the scheme, and (c) the employer.
(8) Notices under this Article must be in the prescribed form and contain such information as may be prescribed. Circumstances in which Board ceases to be involved with an eligible scheme 133. - (1) Where an assessment period begins in relation to an eligible scheme, the Board ceases to be involved with the scheme, for the purposes of this Part, on the occurrence of the first withdrawal event after the beginning of that period. (2) For this purpose the following are withdrawal events in relation to a scheme -
(b) a withdrawal notice issued under Article 114(3) (scheme rescue has occurred) becoming binding; (c) a withdrawal notice issued under or by virtue of Article 130 or 131 (refusal to assume responsibility) becoming binding; (d) a withdrawal notice issued under Article 132 (no insolvency event has occurred or is likely to occur) becoming binding,
and references in this Chapter to a "withdrawal event" are to be construed accordingly.
(b) an application under Article 113(1) is made, or a notification under Article 113(5)(a) is given, in relation to the scheme during the interim period and, if paragraph (4) did not apply, the application or notification would be disregarded for the purposes of -
(ii) paragraph (4) of Article 116 by virtue of paragraph (5) of that Article.
(4) In such a case, the withdrawal notice is to be treated for the purposes of paragraphs (1) and (2), as if the time when it became binding was the time immediately before -
(b) in a case falling within paragraph (3)(b), the making of the application under Article 113(1) or, as the case may be, the giving of the notification under Article 113(5)(a).
(5) For the purposes of paragraph (3), the "interim period" in relation to a scheme means the period beginning with the issuing of the withdrawal notice in relation to the scheme and ending with that notice becoming binding.
(ii) any failure to issue such a withdrawal notice during the specified period; (iii) any notice which has been issued by the Board under Chapter 2 or this Chapter which is relevant to the issue of a withdrawal notice in relation to the scheme during the specified period or to such a withdrawal notice which has been issued during that period becoming binding; (iv) any failure to issue such a notice as is mentioned in head (iii), and
(b) the issue of, or failure to issue, a notice is to be regarded as reviewable -
(ii) if the matter is so reviewed, until -
(b) any reference to the PPF Ombudsman in respect of the matter, and (c) any appeal against his determination or directions,
has been finally disposed of.
Consequences of the Board ceasing to be involved with a scheme
(b) during the assessment period any amount of any benefit payable to a member, or to a person in respect of a member, under the scheme rules was not paid by reason of Article 122 (requirement to pay benefits in accordance with the pension compensation provisions),
that amount falls due to the member, or as the case may be, person at the end of that period.
(b) during the assessment period the amount of benefit paid to a member, or to a person in respect of a member, under the scheme rules exceeded the amount that would have been payable in the absence of Article 122(6) (requirement to disregard winding up when paying benefits during assessment period),
the trustees or managers of the scheme must, at the end of that period, take such steps as they consider appropriate (including steps to adjust future payments under the scheme rules) to recover an amount equal to the excess from the person to whom it was paid.
(b) for contributions towards the scheme which, but for Article 117, would have been payable by or on behalf of the employer (otherwise than on behalf of an employee) during the assessment period, to fall due; (c) requiring that such contributions as are mentioned in sub-paragraph (a) or (b) are accepted for the assessment period or any part of that period; (d) modifying Article 28 of the 1999 Order (reduction of benefit where a person's shareable rights are subject to a pension debit), in its application in relation to cases where benefits accrue under the scheme by virtue of regulations under paragraph (5).
(7) In this Article "contributions" means, in relation to an eligible scheme, contributions payable towards the scheme by or on behalf of the employer or the active members of the scheme in accordance with the schedule of contributions maintained under Article 206 in respect of the scheme. Application for reconsideration 135. - (1) Where paragraph (2) or (3) applies in relation to an eligible scheme, the trustees or managers of the scheme may make an application to the Board under this Article for it to assume responsibility for the scheme in accordance with this Chapter. (2) This paragraph applies where -
(b) the valuation obtained by the Board under Article 127 in respect of the scheme has become binding, and (c) the Board would have been required to assume responsibility for the scheme under Article 111 but for the fact that the condition in paragraph (2)(a) of that Article was not satisfied.
(3) This paragraph applies where -
(b) the valuation obtained by the Board under Article 127 in respect of the scheme has become binding, and (c) the Board would have been required to assume responsibility for the scheme under Article 112 but for the fact that the condition in paragraph (2)(a) of that Article was not satisfied.
(4) An application under this Article must be in the prescribed form, contain the prescribed information and be accompanied by -
(b) audited scheme accounts for a period which -
(ii) ends with a date which falls within the prescribed period ending with the day on which the application is made.
(5) An application under this Article must be made within the authorised period.
(ii) the day on which they received a copy of the binding valuation mentioned in sub-paragraph (b) of that paragraph, and
(b) where paragraph (3) applies, with the later of -
(ii) the day on which they received a copy of the binding valuation mentioned in sub-paragraph (b) of that paragraph.
(7) Where the Board receives an application under paragraph (1), it must give a copy of the application to the Regulator.
(b) a report by the auditor, in the prescribed form, as to whether or not such requirements as may be prescribed are satisfied in relation to the scheme accounts;
(b) benefits in accordance with the member's entitlement or accrued rights (including pension credit rights within the meaning of Article 121(1) of the 1995 Order) under the scheme rules (other than his entitlement or rights in respect of money purchase benefits),
whichever benefits can, in the case of that member, be secured at the lower cost;
(9) The scheme accounts are prepared in accordance with this paragraph if, subject to paragraphs (10) and (11), they -
(b) are prepared in accordance with such other requirements as may be prescribed.
(10) Subject to paragraph (11), regulations under paragraph (4) of Article 127 (other than regulations made by virtue of paragraph (5) of that Article), and guidance under paragraph (6) of that Article, apply to the scheme accounts as they apply for the purposes of a valuation under that Article.
(b) subject to any provision made under sub-paragraph (a), that cost is to be determined, calculated and verified in accordance with guidance issued by the Board.
(13) Where the scheme is being wound up, for the purposes of determining the benefits which fall within paragraph (b) of the definition of "protected benefits quotation" in paragraph (8) no account is to be taken of the winding up of the scheme.
(b) the amount at that time of the liabilities of the scheme which are not liabilities to, or in respect of, members of the scheme, and (c) the estimated costs of winding up the scheme at that time.
(3) Where the Board makes a determination for the purposes of paragraph (2), it must issue a determination notice and give a copy of that notice to -
(b) the Regulator.
(4) In paragraph (3) "determination notice" means a notice which is in the prescribed form and contains such information about the determination as may be prescribed.
(b) if the issue of the notice is so reviewed -
(ii) any reference to the PPF Ombudsman in respect of the issue of the notice, and (iii) any appeal against his determination or directions,
has been finally disposed of and the notice has not been revoked, varied or substituted.
(7) Where a determination notice issued under paragraph (3) becomes binding, the Board must as soon as reasonably practicable give a notice to that effect together with a copy of the binding notice to -
(b) the Regulator.
(8) A notice under paragraph (7) must be in the prescribed form and contain such information as may be prescribed.
(b) for the purposes of paragraph (2)(b), obtain its own valuation of the liabilities of the scheme as at that time;
and where it does so, paragraphs (9)(b), (10) and (11) of Article 135 apply in relation to the valuation as they apply in relation to the scheme accounts (within the meaning of that Article). Closed schemes 137. - (1) This Article applies where Article 135(2) or (3) (scheme rescue not possible but scheme has sufficient assets to meet the protected liabilities) applies in relation to an eligible scheme. (2) If the trustees or managers of the scheme are unable to obtain a full buy-out quotation, they must, within the authorised period, apply to the Board for authority to continue as a closed scheme. (3) For the purposes of determining whether they must make an application under paragraph (2), the trustees or managers of the scheme must take all reasonable steps to obtain a full buy-out quotation in respect of the scheme. (4) An application under paragraph (2) must -
(b) be accompanied by evidence in the prescribed form which shows that the trustees or managers of the scheme have complied with the obligation under paragraph (3) but were unable to obtain a full buy-out quotation.
(5) Where the Board receives an application under paragraph (2), if it is satisfied that the trustees or managers have complied with the obligation under paragraph (3) but were unable to obtain a full buy-out quotation, it must authorise the scheme to continue as a closed scheme.
(b) the Regulator.
(7) In this Article -
(8) If the trustees or managers of the scheme fail to comply with paragraph (2) or (3), 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. Requirement to wind up schemes with sufficient assets to meet protected liabilities 138. - (1) Where, in relation to an eligible scheme, an assessment period within Article 116(2) or (4) comes to an end because the conditions in paragraph (2) are satisfied, the trustees or managers of the scheme must -
(b) where the winding up of the scheme began before the assessment period (whether by virtue of Article 198 or otherwise), continue the winding up of the scheme.
(2) The conditions are -
(b) that -
(ii) if such an application was made, it has been finally determined, and
(c) that, if an application was made under Article 135, the Board is not required to assume responsibility for the scheme by virtue of Article 136(2).
(3) For the purposes of paragraph (2)(b)(ii) an application is not finally determined until -
(b) the period within which the issue of the notice may be reviewed by virtue of Chapter 6 has expired, and (c) if the issue of the notice is so reviewed -
(ii) any reference to the PPF Ombudsman in respect of the issue of the notice, and (iii) any appeal against his determination or directions,
has been finally disposed of.
(4) Where, in relation to an eligible scheme, an assessment period within Article 143(3) comes to an end because the conditions in paragraph (5) are satisfied, the trustees or managers of the scheme must continue the winding up of the scheme begun (whether in accordance with this Article or otherwise) before that assessment period.
(b) that the valuation obtained by the Board in respect of the scheme under Article 142(3) has become binding, and (c) that the Board is not required to assume responsibility for the scheme by virtue of Article 142(1) (duty to assume responsibility for closed scheme).
(6) Where a scheme is wound up in accordance with paragraph (1)(a), the winding up is to be taken as beginning immediately before the assessment period.
(ii) the winding up of the scheme being continued under paragraph (1)(b), and
(b) to take those steps within a period specified in the order.
(9) If the trustees or managers of a scheme fail to comply with a direction to them under paragraph (7), or contained in an order under paragraph (8), 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.
(b) without regard to any such statutory provision, rule of law or rule of the scheme as would otherwise require or might otherwise be taken to require the implementation of any procedure or the obtaining of any consent with a view to the winding up.
(13) Where an assessment period in relation to an eligible scheme comes to an end by virtue of the conditions in paragraph (2) or (5) being satisfied, paragraphs (1) to (4) of Article 134 apply as they apply where an assessment period comes to an end by virtue of the Board ceasing to be involved with the scheme, except that in paragraph (2) of that Article the reference to Article 198 is to be read as a reference to paragraph (6) of this Article. Treatment of closed schemes 139. - (1) In this Article "closed scheme" means an eligible scheme which is authorised under Article 137 to continue as a closed scheme. (2) The provisions mentioned in paragraph (3) apply in relation to a closed scheme at any time when the trustees or managers of the scheme are required to wind up or continue winding up the scheme under Article 138 as if that time fell within an assessment period in relation to the scheme. (3) The provisions are -
(b) Article 45(5) and (6) (Board to act as creditor for debt due by virtue of a contribution notice under Article 43); (c) Article 50(5) and (6) (Board to act as creditor for debt due by virtue of a restoration order under Article 48); (d) Article 52(5) and (6) (Board to act as creditor for debt due by virtue of a contribution notice under Article 51); (e) Article 117 (admission of new members, payment of contributions etc.); (f) Article 118 (directions); (g) Article 121 (Board to act as creditor of the employer).
(4) Regulations may require the trustees or managers of a closed scheme in relation to which the provisions mentioned in paragraph (3) apply to comply with such requirements as may be prescribed when providing for the discharge of any liability to, or in respect of, a member of the scheme for pensions or other benefits.
(b) whether to make an application under Article 141.
(2) Regulations under this Article may prescribe how -
(b) their amount or value,
are to be determined, calculated and verified.
(b) if the issue of the notice is so reviewed -
(ii) any reference to the PPF Ombudsman in respect of the issue of the notice, and (iii) any appeal against his determination or directions,
has been finally disposed of and the notice has not been revoked, varied or substituted.
(6) In this Article, in relation to a scheme -
(b) the full scheme liabilities, and (c) the protected liabilities in relation to the scheme,
prepared and signed by the actuary;
(b) if no such actuary has been appointed -
(ii) a person approved by the Department;
(b) other liabilities of the scheme, and (c) the estimated cost of winding up the scheme;
Applications and notifications where closed schemes have insufficient assets 141. - (1) If at any time the trustees or managers of a closed scheme become aware that the value of the assets of the scheme is less than the amount of the protected liabilities in relation to the scheme, they must, before the end of the prescribed period beginning with that time, make an application to the Board for it to assume responsibility for the scheme. (2) Where the Board receives an application under paragraph (1), it must give a copy of the application to the Regulator. (3) If at any time the Regulator becomes aware that the value of the assets of the scheme is less than the amount of the protected liabilities in relation to the scheme, it must give the Board a notice to that effect. (4) Where the Board receives a notice under paragraph (3), it must give the trustees or managers of the scheme a notice to that effect. (5) The duty imposed by paragraph (1) does not apply where the trustees or managers of a closed scheme become aware as mentioned in that paragraph by reason of a notice given to them under paragraph (4). (6) The duty imposed by paragraph (3) does not apply where the Regulator becomes aware as mentioned in that paragraph by reason of a copy of an application made by the trustees or managers of the closed scheme being given to it under paragraph (2). (7) Regulations may require notices and applications under this Article to be in the prescribed form and to contain the prescribed information. (8) If the trustees or managers of a closed scheme fail to comply with paragraph (1), 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) In this Article -
Duty to assume responsibility for closed schemes
(b) receive a notice from the Board under paragraph (4) of that Article,
the Board must assume responsibility for the scheme in accordance with this Chapter if the value of the assets of the scheme at the relevant time was less than the amount of the protected liabilities at that time.
(b) Article 128 (approval of valuation), other than paragraph (2)(b)(iii) (duty to give copy of approved valuation to employer's insolvency practitioner); (c) Article 129 (binding valuations), other than paragraph (3)(c) (duty to give copy of binding valuation to employer's insolvency practitioner).
(6) In the application of Articles 127 and 129 by virtue of paragraph (4) or (5) -
(b) paragraph (2) of Article 129 applies as if the reference to Article 112(2)(a) included a reference to paragraph (1) of this Article.
(7) An application under paragraph (1) of Article 141, or notification under paragraph (4) of that Article, is to be disregarded for the purposes of paragraph (1) if it is made or given during an assessment period (see Articles 116 and 143) in relation to the scheme which began before the application was made or notification was given.
Closed schemes: further assessment periods
(b) the trustees or managers of the scheme receive a notice under paragraph (4) of that Article.
(2) For the purposes of paragraph (1) an application under paragraph (1) of Article 141, or notification under paragraph (4) of that Article, is to be disregarded if it is made or given during an assessment period (see Article 116 and this Article) in relation to the scheme which began before the application was made or notification was given.
(b) ends when -
(ii) the conditions in Article 138(5) (closed scheme with sufficient assets to meet protected liabilities etc.) are satisfied in relation to the scheme,
whichever first occurs.
(4) In this Article "closed scheme" has the same meaning as in Article 139. Transfer notice 144. - (1) This Article applies where the Board is required to assume responsibility for a scheme under Article 111, 112, 136 or 142. (2) The Board must give the trustees or managers a notice (a "transfer notice"). (3) In a case to which Article 111 or 112 applies, a transfer notice may not be given until the valuation obtained under Article 127 is binding. (4) In a case to which Article 142 applies, a transfer notice may not be given until the valuation obtained under paragraph (3) of that Article is binding. (5) A transfer notice may not be given in relation to a scheme during any period when the issue of, or failure to issue, a withdrawal notice under or by virtue of Article 130 or 131 (refusal to assume responsibility) is reviewable (see Article 133(6)(b)). (6) The Board must give a copy of any notice given under paragraph (2) to -
(b) any insolvency practitioner in relation to the employer or, if there is no such insolvency practitioner, the employer.
(7) This Article is subject to Article 156(1) and (2) (no transfer notice within first 12 months of assessment period or when fraud compensation application is pending).
(b) the trustees or managers of the scheme are discharged from their pension obligations from that time, and (c) from that time the Board is responsible for securing that compensation is (and has been) paid in accordance with the pension compensation provisions,
and, accordingly, the scheme is to be treated as having been wound up immediately after that time.
(b) such other liabilities as may be prescribed.
(4) In paragraph (2)(b) "pension obligations" in relation to the trustees or managers of the scheme means -
(b) their obligations to administer the scheme in accordance with the scheme rules and this or any other statutory provision.
(5) Schedule 5 makes provision in respect of the transfer of the property, rights and liabilities of a scheme under paragraph (2)(a).
(b) as a result of the transfer, the Board is required, by reason of that term, to pay a specified amount or specified amounts to a specified person who, immediately before the time mentioned in paragraph (2)(a), was a member of the scheme or a person entitled to benefits in respect of such a member.
(8) In paragraph (7) -
(ii) any benefit which will be payable in respect of that person on his death, and
(b) is a contract -
(ii) in respect of which the amount payable on surrender does not exceed the liability secured;
The pension compensation provisions
(b) lump sum compensation to be paid to members, (c) a cap to be imposed on the periodic compensation and lump sum compensation payable, and (d) annual increases to be made to periodic compensation.
(2) In this Part references to the pension compensation provisions are to the provisions of, and the provisions made by virtue of, this Article, Articles 124 to 126, 145(2)(c), 148 and 152 and Schedule 6.
Adjustments to be made where the Board assumes responsibility for a scheme
(b) have been paid before the trustees or managers receive the transfer notice,
are to be regarded as going towards discharging any liability of the Board to pay compensation to the member or, as the case may be, person in accordance with the pension compensation provisions.
(b) during the period mentioned in paragraph (2)(a), a person became entitled under the scheme rules to a benefit of a prescribed description in respect of the member,
the benefit, or any part of it, is for the purposes of paragraph (2), to be treated as having become payable before the assessment date.
(ii) interest on that amount, at the prescribed rate, for the period which begins when the excess was paid by the trustees or managers and ends with the recovery of the excess, and
(b) if any amount so paid was less than that entitlement (or no amount was paid in respect of that entitlement), pay an amount to the member or person concerned equal to the aggregate of -
(ii) interest on that amount, at the prescribed rate, for the period which begins when the shortfall ought to have been paid by the trustees or managers and ends with the payment of the shortfall by the Board.
(5) In paragraph (4) references to an amount paid do not include -
(b) any other amount of a prescribed description.
(6) Nothing in paragraph (4) requires the Board -
(b) to recover from any person any amount which it considers to be trivial.
(7) In this Article "assessment date" is to be construed in accordance with Schedule 6.
Duty to pay scheme benefits unpaid at assessment date etc.
(b) any payment in respect of a refund of contributions.
(5) Regulations may provide that, in prescribed circumstances, where -
(b) during the period beginning with the assessment date and ending with the receipt by the trustees or managers of the transfer notice, a person became entitled under the scheme rules to a benefit of a prescribed description in respect of the member,
that person's entitlement to the benefit, or to any part of it, is, for the purposes of paragraph (2), to be treated as having arisen before the assessment date.
(b) the scheme rules (including any relevant legislative provision within the meaning of Article 2(4)),
are to have effect subject to such modifications as may be prescribed.
(ii) the Board validating any action mentioned in Article 119(9), or
(b) where, in prescribed circumstances, any such liability of a prescribed description is discharged on the assessment date but before the commencement of the assessment period.
(2) In this Article "assessment date" is to be construed in accordance with Schedule 6.
(b) for calculating the amounts of compensation according to a prescribed scale or otherwise adjusting them to avoid fractional amounts or facilitate computation; (c) prescribing the circumstances and manner in which compensation to which a person ("the beneficiary") is entitled may be made to another person on behalf of the beneficiary for any purpose (including the discharge in whole or in part of an obligation of the beneficiary or any other person); (d) for the payment or distribution of compensation to or among persons claiming to be entitled on the death of any person and for dispensing with strict proof of their title; (e) for the recovery of amounts of compensation paid by the Board in excess of entitlement (together with interest on such amounts for the period from payment until recovery); (f) specifying the circumstances in which payment of compensation can be suspended.
(3) In this Article "compensation" means compensation payable under Schedule 6 or under Article 125(2). Discharge of liabilities in respect of compensation 153. - (1) This Article applies where the Board assumes responsibility for an eligible scheme in accordance with this Chapter. (2) The Board may provide for the discharge of any liability imposed by this Chapter to provide compensation -
(b) by the entry into an annuity contract or a number of such contracts; (c) by the transfer of the benefit of such a policy or policies or such a contract or contracts; (d) in prescribed circumstances, by the payment of a cash sum calculated in the prescribed manner.
Discharge of liabilities in respect of money purchase benefits
(b) one or more members are entitled, or have accrued rights, under the scheme rules to money purchase benefits.
(2) Regulations must make provision in respect of cases to which paragraph (1) applies requiring the Board to secure that liabilities in respect of such benefits transferred to the Board under Article 145 are discharged by it in the prescribed manner.
Equal treatment 155. - (1) This Article applies where -
(b) a woman has been employed on work rated as equivalent with that of a man in the same employment, or (c) a woman has been employed on work which, not being work in relation to which sub-paragraph (a) or (b) applies, was, in terms of the demands made on her (for instance under such headings as effort, skill and decision), of equal value to that of a man in the same employment,
and service in that employment was pensionable service under an occupational pension scheme.
(b) is or becomes less favourable to the man than it is to the woman,
that function has effect with such modifications as are necessary to ensure that the provision is not less favourable.
(b) is a material difference between the woman's case and the man's case.
(4) Paragraph (2) does not apply in such circumstances as may be prescribed.
(b) Article 150 (duty to pay scheme benefits unpaid at assessment date etc.), (c) Article 153 (discharge of liabilities in respect of compensation), or (d) Article 154 (discharge of liabilities in respect of money purchase benefits);
Relationship with fraud compensation regime 156. - (1) No transfer notice may be given in respect of a scheme within the first 12 months of an assessment period in relation to the scheme. (2) Where an application has been made under Article 165 (application for fraud compensation payment), no transfer notice may be given until -
(b) the period within which the Board's determination may be reviewed by virtue of Chapter 6 has expired, and (c) if the determination is so reviewed -
(ii) any reference to the PPF Ombudsman in respect of the determination, and (iii) any appeal against his determination or directions,
has been finally disposed of.
(3) Paragraph (4) applies where during an assessment period in relation to a scheme the Board determines to make one or more fraud compensation payments ("the fraud compensation") to the trustees or managers of the scheme under Chapter 4.
(b) in the case of Article 112(2)(a), has the same meaning as in that provision, (c) in the case of Article 136(2), means the reconsideration time (within the meaning of Article 135), and (d) in the case of Article 142(1), has the same meaning as in that provision.
(6) Paragraph (4) does not apply to the extent that the fraud compensation is payable in respect of a reduction in the value of money purchase assets of the scheme.
Initial levy 157. - (1) Regulations must make provision for imposing a levy ("the initial levy") in respect of eligible schemes for the period ("the initial period") which -
(b) ends on the following 31st March or, if the regulations so provide, 12 months after the day referred to in sub-paragraph (a).
(2) The regulations must prescribe -
(b) the rate of the levy, and (c) the time or times during the initial period when the levy, or any instalment of the levy, becomes payable.
(3) Regulations under this Article may only be made with the approval of the Department of Finance and Personnel.
(b) a scheme-based pension protection levy in respect of eligible schemes.
(2) For the purposes of this Article -
(ii) except in relation to any prescribed scheme or scheme of a prescribed description, the likelihood of an insolvency event occurring in relation to the employer in relation to a scheme, and (iii) if the Board considers it appropriate, one or more other risk factors mentioned in paragraph (3), and
(b) a scheme-based pension protection levy is a levy assessed by reference to -
(ii) if the Board considers it appropriate, one or more other scheme factors mentioned in paragraph (4).
(3) The other risk factors referred to in paragraph (2)(a)(iii) are factors which the Board considers indicate one or more of the following -
(b) such other matters as may be prescribed.
(4) The other scheme factors referred to in paragraph (2)(b)(ii) are -
(b) the total annual amount of pensionable earnings of active members of a scheme; (c) such other factors as may be prescribed.
(5) The Board must, before the beginning of each financial year, determine in respect of that year -
(b) the time or times by reference to which those factors are to be assessed, (c) the rate of the levies, and (d) the time or times during the year when the levies, or any instalment of levy, becomes payable.
(6) Different risk factors, scheme factors or rates may be determined in respect of different descriptions of scheme.
(9) The Board's duty to impose pension protection levies in respect of any financial year is subject to -
(b) Article 163 (transitional provision).
Supplementary provisions about pension protection levies
(b) any of the proposed levy factors or levy rates is different, or applies to a different description of scheme, from the levy factors and levy rates in respect of the pension protection levies imposed in the previous financial year, or (c) no consultation has been required under this paragraph in relation to the pension protection levies imposed for either of the previous two financial years.
(2) The Board must publish details of any determination under Article 158(5) in the prescribed manner.
(b) "transitional period" has the meaning given by Article 163(3).
The levy ceiling
(b) with such other information as the Board may require in respect of the assets and protected liabilities of the scheme at such times as may be prescribed.
(2) For the purposes of this Article, in relation to a scheme -
(b) if no such actuary has been appointed -
(ii) a person approved by the Department.
(3) Regulations under this Article may prescribe how -
(b) their amount or value,
are to be determined, calculated and verified.
(b) Article 160(2) is to apply as if the reference to the levy ceiling for the financial year were a reference to such lower amount as is specified in the regulations.
(2) Regulations which contain provision made by virtue of paragraph (1)(b) may only be made with the approval of the Department of Finance and Personnel.
(b) the financial year which begins immediately after that period.
Calculation, collection and recovery of levies
(b) any pension protection levy imposed under Article 158 in respect of a scheme.
(2) The levy is payable to the Board by or on behalf of -
(b) any other prescribed person.
(3) The Board must in respect of the levy -
(b) calculate the amount of the levy in respect of each of those schemes, and (c) notify any person liable to pay the levy in respect of the scheme of the amount of the levy in respect of the scheme and the date or dates on which it becomes payable.
(4) The Board may require the Regulator to discharge, on the Board's behalf, its functions under paragraph (3) in respect of the levy.
(b) if the Board so determines, by the Regulator on its behalf.
(8) Regulations may make provision relating to -
(b) the circumstances in which any such amount may be waived.
Cases where fraud compensation payments can be made 165. - (1) The Board shall, in accordance with this Article, make one or more payments (in this Part referred to as "fraud compensation payments") in respect of an occupational pension scheme if -
(b) the value of the assets of the scheme has been reduced since the relevant date and the Board considers that there are reasonable grounds for believing that the reduction was attributable to an act or omission constituting a prescribed offence, (c) paragraph (2), (3) or (4) applies, (d) an application is made which meets the requirements of paragraph (5), and (e) the application is made within the authorised period.
(2) This paragraph applies where -
(b) after that event, a scheme failure notice has been issued under Article 106(2)(a) in relation to the scheme and that notice has become binding, and (c) a cessation event has not occurred in relation to the scheme in respect of a cessation notice which has been issued during the period -
(ii) ending immediately before the issuing of the scheme failure notice under Article 106(2)(a),
and the occurrence of such a cessation event in respect of a cessation notice issued during that period is not a possibility.
(3) This paragraph applies where -
(b) in response to that application, or the notice given by the Regulator under paragraph (4) of that Article, the Board has issued a scheme failure notice under Article 114(2) in relation to the scheme and that notice has become binding.
(4) This paragraph applies where -
(b) the employer in relation to the scheme is unlikely to continue as a going concern, (c) the prescribed requirements are met in relation to the employer, (d) the application under this Article states that the case is one in relation to which sub-paragraphs (b) and (c) apply, and (e) in response to that application the Board has issued a notice under Article 166(2) confirming that a scheme rescue is not possible in relation to the scheme and that notice has become binding.
(5) An application meets the requirements of this paragraph if -
(b) it is made in the prescribed manner and contains the prescribed information.
(6) Subject to paragraph (7), an application is made within the authorised period if it is made within the period of 12 months beginning with the later of -
(b) the time when the auditor or actuary of the scheme, or the trustees or managers, knew or ought reasonably to have known that a reduction of value falling within paragraph (1)(b) had occurred,
or within such longer period as the Board may determine in any case.
(b) either -
(ii) a cessation event has occurred in relation to the scheme in respect of a cessation notice issued during the period -
(a) beginning with the occurrence of the last insolvency event which occurred before the current event, and
(9) For the purposes of this Article -
(b) a "cessation notice" means -
(ii) a withdrawal notice issued in relation to the scheme under Article 114(3) (scheme rescue has occurred), (iii) a withdrawal notice issued in relation to the scheme under Article 132 (no insolvency event has occurred or is likely to occur), (iv) a notice issued in relation to the scheme under Article 166(2)(b) (scheme rescue has occurred), or (v) a notice issued under Article 106(4) (inability to confirm status of scheme) in a case where the notice has become binding and Article 132 does not apply,
(c) the occurrence of a cessation event in relation to a scheme in respect of a cessation notice issued during a particular period ("the specified period") is a possibility until each of the following is no longer reviewable -
(ii) any failure to issue such a cessation notice during the specified period; (iii) any notice which has been issued by the Board under Chapter 2 or 3 which is relevant to the issue of a cessation notice in relation to the scheme during the specified period or to such a cessation notice which has been issued during that period becoming binding; (iv) any failure to issue such a notice as is mentioned in head (iii), and
(d) the issue of, or failure to issue, a notice is to be regarded as reviewable -
(ii) if the matter is so reviewed, until -
(b) any reference to the PPF Ombudsman in respect of the matter, and (c) any appeal against his determination or directions,
has been finally disposed of.
(10) In this Article -
(b) in any other case where paragraph (2) applies, the issue of the scheme failure notice under Article 106(2)(a) mentioned in sub-paragraph (b) of that paragraph, (c) in a case where paragraph (3) applies, the event within sub-paragraph (a) of that paragraph, and (d) in a case where paragraph (4) applies, the trustees or managers becoming aware that sub-paragraphs (b) and (c) of that paragraph apply in relation to the scheme;
(b) in any other case, the day appointed by the Department by order for the purposes of this Article.
(11) This Article is subject to Article 167(2) (no fraud compensation payments to be made until settlement date determined).
(b) that a scheme rescue has occurred,
it must, as soon as reasonably practicable, issue a notice to that effect.
(b) the trustees or managers of the scheme, (c) if the trustees or managers did not make the application mentioned in paragraph (1), the person who made that application, and (d) any insolvency practitioner in relation to the employer or, if there is no such insolvency practitioner, the employer.
(4) For the purposes of this Chapter a notice issued under paragraph (2) is not binding until -
(b) if the issue of the notice is so reviewed -
(ii) any reference to the PPF Ombudsman in respect of the issue of the notice, and (iii) any appeal against his determination or directions,
has been finally disposed of and the notice has not been revoked, varied or substituted.
(5) Where a notice issued under paragraph (2) becomes binding, the Board must as soon as reasonably practicable give a notice to that effect together with a copy of the binding notice to the persons to whom it is required to give a copy notice under paragraph (3).
(b) to which any reduction in value falling within that sub-paragraph was attributable.
(4) It is for the Board to determine whether anything received by the trustees or managers of the scheme is to be treated as a payment received in respect of any such act or omission.
Fraud compensation payments
(b) the amount of any recoveries of value obtained before the settlement date (within the meaning of Article 167(2)).
(4) Subject to paragraph (3), the Board -
(b) must take account of any interim payment already made under Article 169.
(5) The Board must give written notice of its determination under paragraph (4) to -
(b) the trustees or managers of the scheme, (c) if the trustees or managers did not make the application under Article 165 (fraud compensation payments), the person who made that application, and (d) any insolvency practitioner in relation to the employer or, if there is no such insolvency practitioner, the employer.
Interim payments
(ii) the trustees or managers would not otherwise be able to meet liabilities of a prescribed description, but
(b) it has not determined the settlement date under Article 167.
(2) Amounts payable under this Article must not exceed the amounts determined in accordance with regulations.
(b) that the amount of the payment was excessive.
(4) Subject to that, a payment under paragraph (1) may be made on such terms (including terms requiring repayment in whole or in part) and on such conditions as the Board considers appropriate.
(b) the value of the assets of the scheme was reduced after the relevant date but before the transfer notice (within the meaning of Article 144) was received by the trustees or managers of the scheme and there are reasonable grounds for believing that the reduction was attributable to an act or omission constituting an offence prescribed for the purposes of Article 165(1)(b), and (c) no application was made under Article 165 in respect of that reduction (or any such application was withdrawn before it was determined).
(2) The Board may transfer an amount from the Fraud Compensation Fund to the Pension Protection Fund ("fraud compensation transfer payment") in respect of the reduction in value, subject to the provisions of this Article.
(b) to which any reduction in value falling within paragraph (1)(b) was attributable.
(6) It is for the Board to determine whether anything received by it is to be treated as a payment received in respect of any such act or omission.
(7) The amount of any fraud compensation transfer payment (or, if there is more than one, the aggregate) must not exceed the difference between -
(b) the amount of any recoveries of value obtained by the Board before the date determined by the Board under paragraph (4).
(8) Subject to paragraph (7), the Board must determine the amount of any fraud compensation transfer payment in accordance with regulations made for the purposes of this paragraph. Fraud compensation levy 171. - (1) For the purposes of meeting expenditure payable out of the Fraud Compensation Fund, regulations may provide for the imposition of a levy ("fraud compensation levy") in respect of occupational pension schemes. (2) Paragraph (1) does not apply in relation to any scheme which is prescribed or of a description prescribed under Article 165(1)(a) (schemes not eligible for fraud compensation). (3) A fraud compensation levy imposed in respect of a scheme is payable to the Board by or on behalf of -
(b) any other prescribed person.
(4) A fraud compensation levy is so payable at prescribed times and at a rate, not exceeding the prescribed rate, determined by the Board.
(b) calculate the amount of the levy in respect of each of those schemes, and (c) notify any person liable to pay the levy in respect of the scheme of the amount of the levy in respect of the scheme and the date or dates on which it becomes payable.
(8) The Board may require the Regulator to discharge, on the Board's behalf, its functions under paragraph (7) in respect of the levy.
(b) if the Board so determines, by the Regulator on its behalf.
(11) Without prejudice to the generality of paragraph (1), (9) or (10), regulations under this Article may include provision relating to -
(b) the circumstances in which any such amount may be waived.
Information to be provided to the Board etc. 172. - (1) Regulations may require such persons as may be prescribed to provide -
(b) to a person -
(ii) who is authorised by the Board for the purposes of the regulations,
information of a prescribed description at such times, or in such circumstances, as may be prescribed.
(2) Regulations under paragraph (1) may in particular make provision for requiring such persons as may be prescribed to provide any information or evidence needed for a determination of entitlement to compensation under Chapter 3.
(b) relevant to the exercise of the Board's functions in relation to an occupational pension scheme.
(2) A notice under paragraph (1) may be given by -
(b) a person authorised by the Board for the purposes of this Article in relation to the scheme.
(3) This paragraph applies to -
(b) a professional adviser in relation to the scheme, (c) the employer in relation to the scheme, (d) an insolvency practitioner in relation to the employer, and (e) any other person appearing to the Board, or person giving the notice, to be a person who holds, or is likely to hold, information relevant to the discharge of the Board's functions in relation to the scheme.
(4) Where the production of a document, or the provision of information, is required by a notice given under paragraph (1), the document must be produced, or information must be provided, in such a manner, at such a place and within such a period as may be specified in the notice.
(b) may require any person on the premises to produce, or secure the production of, any document relevant to that purpose for inspection by the appointed person, (c) may take copies of any such document, (d) may take possession of any document appearing to be such a document or take in relation to any such document any other steps which appear necessary for preserving it or preventing interference with it, (e) may, in the case of any such document which consists of information which is stored in electronic form and is on, or accessible from, the premises, require the information to be produced in a form -
(ii) in which it is legible or from which it can readily be produced in a legible form, and
(f) may, as to any matter relevant to the exercise of the Board's functions in relation to the scheme, examine, or require to be examined, either alone or in the presence of another person, any person on the premises whom he has reasonable cause to believe to be able to give information relevant to that matter.
(2) Premises are scheme premises for the purposes of paragraph (1) if the appointed person has reasonable grounds to believe that -
(b) an insolvency practitioner in relation to the employer is acting there in that capacity, (c) documents relevant to -
(ii) the employer,
are being kept there, or
unless the premises are a private dwelling-house not used by, or by permission of, the occupier for the purposes of a trade or business.
(b) any extension of that period under paragraph (6).
(6) The Board may before the end of the period mentioned in paragraph (5) (including any extension of it under this paragraph) extend it by such period not exceeding 12 months as the Board considers appropriate.
(b) neglects or refuses to produce, or secure the production of, any document when required to do so under that Article, or (c) neglects or refuses to answer a question or to provide information when so required,
is guilty of an offence. |