Every quarter, the Gowling WLG pensions team prepare a legal update covering the most relevant issues and developments for trustees and employers. The update covers new legislation, regulatory changes, pensions taxation and administration, scheme governance, investment and funding and pension cases and Ombudsman determinations.
Capping early exit charges and banning member-borne commission
The Department for Work and Pensions (DWP) has issued draft regulations that will cap early exit charges and ban member-borne commission payments in certain occupational pension schemes.
New defined benefit (DB) scheme investment guidance
The Pensions Regulator (TPR) has issued new guidance for DB scheme trustees and their advisers on investment. This covers governance, controls and monitoring in relation to the management of DB scheme investments.
Deferred debt arrangement proposal
The DWP has proposed a new deferred debt arrangement for non-segregated DB multi-employer schemes.
Spring Budget 2017 and Finance Act 2017
Spring Budget 2017 saw the announcement of a new Overseas Transfer Charge. In addition, the Chancellor confirmed a reduction in the money purchase annual allowance (MPAA) and new allowances for the provision of pensions advice.
The MPAA reduction has been put on hold pending the outcome of the general election. The general election has also affected allowances for pensions advice.
DWP issues Green Paper on the future of DB pension schemes
The DWP has published its pensions Green Paper (Security and Sustainability in Defined Benefit Pension Schemes).
The general levy on very large schemes to be reduced
DWP has confirmed that the rate of the general levy on pension schemes with more than 500,000 members will be reduced from 2017/2018 onwards.
Thales UK Ltd v Thales Pension Trustees Ltd & ors 
The latest from the courts on pension increases and revaluation and using Retail Price Index (RPI) or Consumer Price Index (CPI) as an inflation index.
Mrs B (PO 9253)
Issues on deciding an ill health early retirement pension for a member who did not meet the scheme or statutory criteria for incapacity.
Ms R (PO 9995)
Confirmation that information on the degeneration of the original health complaint or evidence of new medical issues do not need to be taken into account when decision makers are reviewing previous decisions in respect of awarding ill health early retirement benefits.
Mr R (PO 10746)
The Pensions Ombudsman dealt with a member complaint arising from a scheme's decision to switch from RPI to CPI for revaluing his pension benefits.
Scheme administration and governance
Capping early exit charges and banning member-borne commission
The DWP has issued draft regulations that will:
- limit or ban early exit charges in occupational pension schemes; and
- ban member-borne commission payments in occupational pension schemes.
Early exit charges
The draft regulations introduce the following cap and ban in respect of early exit charges in occupational pension schemes:
- a cap of 1% on early exit charges for existing members; and
- a total ban on early exit charges for new members.
The Financial Conduct Authority (FCA) has already capped or banned charges from 31 March 2017 for personal workplace pensions. Certain adjustments (such as market value reductions) are not subject to the cap and ban, so care is required when implementing any changes.
Ban on member-borne commission charges
The draft regulations also seek to prohibit member-borne commission charges (i.e. charges used to recover the costs of commission payments to advisers) for occupational pension schemes used for automatic enrolment and in place on 6 April 2016. Member-borne commission charges are already banned under new arrangements that were entered into after 6 April 2016.
Trustees and managers of affected schemes have to notify service providers that the scheme is used for automatic enrolment (as was the case when the ban was introduced for new arrangements).
Next steps and actions
The regulations are likely to be effective from October 2017, assuming they are brought into force as they are currently drafted. Schemes will need to be mindful of the changes, the requirement to notify service providers and various nuances (e.g. market value reductions not being subject to the cap and ban on early exit charges).
Scheme investment and funding
The Pensions Regulator publishes new investment guidance for DB scheme trustees and advisers
The Pensions Regulator has issued new guidance on investments for trustees and advisers running schemes that provide defined benefits (the DB Investment Guidance).
The DB Investment Guidance sits alongside The Pensions Regulator's Code of Practice Number 3 - Funding defined benefits (the DB Funding Code). The DB Funding Code sets out the standards that are expected to be reached in complying with the law. The DB Investment Guidance provides practical information, examples and factors to consider on how trustees and advisers might meet the standards in practice.
The DB Investment Guidance covers six areas:
- investing to fund defined benefits;
- matching assets;
- growth assets;
- implementation; and
Some of the more useful aspects of the DB Investment Guidance are checklists of what The Pensions Regulator believes is best practice in respect of putting together a Statement of Investment Principles, how trustees should work with investment advisers, collaborative working with the scheme's employers, appointing a fiduciary manager and developing a scheme's investment journey plan.
There are also useful examples of approaches trustees could take and factors to consider when investing schemes assets.
Next steps and actions
The DB Investment Guidance sets out the Regulator's view of best practice in respect of investment for DB schemes. Whilst it doesn't say anything revolutionary, it does provide a useful overview of the relevant considerations for trustees and their advisers.
In addition, the checklists could provide a useful risk-management tool for trustees going through various changes such as appointing new investment managers.
New deferred debt arrangement proposed by DWP for DB multi-employer schemes
The DWP has proposed a new deferred debt arrangement (DDA) to enable employers in multi-employer pension schemes (and not just non-associated multi-employer schemes) to defer the requirement to pay an employer debt if they cease to employ an active member. The comments below are based on the proposed DDA structure, which is subject to consultation.
This would enable employers whose only change of circumstance is ceasing to employ an active member to retain an on-going commitment to the scheme.
The DDA would be in addition to existing options (such as entering into scheme apportionment arrangements or withdrawal arrangements) and require the scheme trustees to consent and the scheme funding test to be satisfied.
The DDA would not be available if the scheme was:
- in a Pension Protection Fund (PPF) assessment period (or be likely to start such a period within the next year); or
- in the process of being wound up.
The DDA would end if certain events happen, such as:
- the deferred employer choosing to trigger the Section 75 debt;
- the scheme starting to wind-up;
- an insolvency event occurring in relation to the deferred employer;
- a freezing event occurring in relation to the scheme; or
- the deferred employer restructuring.
Trustees would still have to monitor funding and assess the deferred employer's covenant. Trustees would also be able to end the DDA if they felt that the deferred employer was not complying with its obligations or that ending the DDA would be in the interests of the scheme.
Next steps and actions
The proposed DDA may help some employers who are otherwise stuck and unable to pay an exit debt on the more expensive buy-out basis but who are able to continue paying their liabilities on the less expensive technical provisions basis.
However, it is important to note that this proposal simply offers a deferral of the employer's debt. The DDA would not address the concerns of some unincorporated employers who are unable to withdraw from a scheme and discharge their liability completely.
Pensions taxation and payments
General election causes delay in the implementation of spring budget
The Chancellor of the Exchequer, Philip Hammond, delivered his Spring Budget to Parliament on 8 March 2017.
Workplace pensions did not feature as one of the main areas for the Treasury's focus. The Budget did, however, confirm a previously announced reduction in the MPAA and unveiled a charge on certain transfers to a Qualifying Recognised Overseas Pension Scheme (QROPS). All of this was reflected in the first draft of the Finance Bill 2017.
HM Treasury's legislative plans were interrupted by the announcement of the General Election. A revised Finance Bill 2017 was pushed through before Parliament prorogued. Certain Budget pledges were not included in the revised draft but may be reintroduced in the next parliamentary session.
Overseas Transfer Charge
A new 25% Overseas Transfer Charge (OTC) applies to transfers to QROPS requested on and from 9 March 2017. The OTC will apply unless an exemption applies (e.g. if the member is resident in the same country in which the receiving QROPS is established or the member is resident in a country within the European Economic Area and the QROPS is also established in the EEA).
The OTC must be deducted by the pension scheme administrator or manager prior to making the transfer and is based on the 'transferred value'. The 'transferred value' is typically the total amount and value of assets transferred. Refunds of the OTC are also possible (e.g. where the individual makes a taxable transfer and within five tax years one of the exemptions applies).
Members qualifying for an exemption have ongoing duties to provide information to the scheme manager or administrator following certain changes in their circumstances (e.g. should the conditions for exemption subsequently cease, in which case the OTC may become due). If the individual ceases to qualify for an exemption, the QROPS receiving a transfer which was not subject to the OTC is also potentially subject to UK tax provisions. Any payments out of the QROPS in the five years following the transfer could attracted a UK tax liability.
Liability of scheme managers and/or administrators is joint and several with the member and there are new reporting obligations for the OTC. HMRC required QROPS to undertake to operate the OTC regime by 13 April 2017. Any QROPS that failed to provide this undertaking ceased to be a QROPS on that date.
Money Purchase Annual Allowance and pensions advice payments
In his Budget Statement, the Chancellor also confirmed: (a) a reduction of the MPAA from £10,000 to £4,000 with effect from 6 April 2017; and (b) an increase in the maximum tax free amount an employer can pay towards pensions advice for employees of £500 each year (up from £150) (i.e. the employer-arranged pensions advice exemption).
Finance Act 2017 did not contain the original draft clauses implementing these provisions. It is understood that the government plans to reintroduce these if they win the election. At this time, there is no confirmation whether this would take effect retrospectively to 6 April 2017 or from the effective date of the new legislation. This uncertainty is unhelpful for employers, trustees and administrators. Schemes may have already informed members that, since 6 April 2017, the limit of the MPAA is £4,000.
In addition, the pensions advice allowance payment (PAAP) came into effect in April 2017. The PAAP allows individuals to take £500 from their DC pension pots to redeem against the cost of financial advice on three separate occasions before age 55. Whilst the PAAP is an authorised payment, there are concerns that currently such payments may be subject to income tax.
The Government had said the PAAP would not be taxed on withdrawal regardless of the individual's income, would not affect a member's ability to take up to 25% tax free as a lump sum when benefits are ultimately taken, and that it was intended to be made 'tax free'. Whilst the policy intention is clear, there isn't anything obvious in legislation that actually makes the PAAP income tax free. This ambiguity has been raised with HMRC.
Next steps and actions
When transferring benefits, UK scheme administrators will need to check the status of the receiving scheme. If it is a QROPS the OTC may apply. If it is not a QROPS, but the receiving scheme is situated overseas, the transfer could attract other charges as it is likely to be an unauthorised payment. This could incur an unauthorised payment charge or scheme sanction charge. Checks and a level of due diligence is therefore required before a scheme makes such overseas transfers. HMRC has provided guidance on this.
The existing limits continue to apply (i.e. £10,000 for MPAA and £150 for employer-paid pensions advice). However the consensus amongst financial advisers appears to be that it is better for people to work on the basis that the MPAA is £4,000.
This is on the grounds that, if no change is made for this tax year by the new government, there will still be time for individuals to make an additional contribution later in the tax year. To do otherwise at this stage risks incurring retrospective tax charges.
Schemes should watch and wait if they are considering making PAAPs pending confirmation of the tax-free status. If they decide to go ahead with any such payments, the ambiguous tax status should be made clear in any member communications.
Pensions legislation, guidance and policy
DWP issues a Green Paper on the future of defined benefit pensions
The DWP has published its Pensions Green Paper (Security and Sustainability in Defined Benefit Pension Schemes).
After last year's high profile pensions cases and the Work and Pensions Select Committee's inquiry and report on the future of DB pension schemes, the DWP is now seeking views on the challenges facing DB pension schemes and how to restore confidence in the DB system.
The Green Paper focuses on four key areas:
- funding and investment;
- employer contributions and affordability;
- member protection; and
- the consolidation of schemes.
The full text of the Green Paper and consultation is available. Responses to the Green Paper had to be submitted by 14 May 2017.
Next steps and actions
Trustees and sponsors of DB pension schemes will be very interested in the issues raised. The Green Paper is wide-ranging but it is difficult to comment accurately at this stage on the extent to which statutory changes will actually be introduced.
In terms of timing, we don't expect to see final legislation in place this year. It usually takes between 12 to 18 months for policies to develop from the Green Paper stage to final legislation.
The focus on these issues that is being raised in the General Election also ensures that DB pensions will continue to be in the spotlight for the foreseeable future.
The general levy on very large schemes is to be reduced
In its response to the consultation on the draft Occupational and Personal Pension Schemes (General Levy) (Amendment) Regulations 2017), the DWP has confirmed that the rate of the general levy on pension schemes with more than 500,000 members will be reduced from 2017/2018 onwards.
By way of reminder, the general levy on occupational and personal pension schemes is collected by TPR and provides the DWP with the core funding for TPR, The Pensions Advisory Service (TPAS) and the Pensions Ombudsman. In its original consultation, the DWP put forward three options:
- to leave the current levy rate unchanged for all schemes; or
- to reduce it for all schemes; or
- to reduce the levy rate for very large schemes whilst freezing the rate for small schemes.
At that time, the DWP also stated that its preference was to implement the third option by creating a new levy rate for pension schemes with 500,000 or more members, which would be set at a level 25% lower than the current levy rate which applies to schemes with 10,000 or more members.
Workplace pension reform has resulted in a small number of schemes with very large memberships. The DWP believes that, under the current regime, such schemes pay a disproportionately high proportion of the general levy. The proposed change will reduce the amount to be paid by these very large schemes whilst not placing additional burdens on smaller schemes.
The consultation response confirms that this is the approach being adopted. The levy rates for schemes with fewer than 500,000 members remain unchanged.
The Occupational and Personal Pension Schemes (General Levy) (Amendment) Regulations 2017 came into effect on 1 April 2017 to give effect to the new rate.
Next steps and actions
This change will only affect the UK's very largest schemes, both occupational and personal. For all other schemes with less than 500,000 members (the majority of UK pension schemes), the general levy rates remain unchanged.
Cases and determinations
Thales UK Ltd v Thales Pension Trustees Ltd & ors 
This case provides the most up to date guidance from the Courts on how to interpret and apply rules dealing with revaluation and increases to pension benefits.
The case also summarises some of the key features of RPI and CPI and how they are compiled. This is relevant in deciding between indices that aim to protect the value of pension benefits against the effects of inflation.
The key points from the judgment are:
- consider the wording in your rule carefully - small changes in language could make a significant difference to the analysis;
- apply the wording on the page - views on suitability, purpose, and merits of one index compared to another are unlikely to be relevant for interpreting a rule (except where those concepts are specifically incorporated into the rule);
- exposition on the compilation of RPI and CPI - there is some detail of the way consumer price indices are compiled and operate, and what has changed in RPI and CPI over the years. This may assist others in the interpretation of similar rules (and save them some research).
- RPI was the index to be applied - in the particular circumstances of this case, the judge was supportive of the continued role for RPI.
Next steps and actions
In the particular circumstances of this case, the Judge was supportive of a continued role for RPI, stating that exceptional circumstances would be needed for the trustees to consider CPI given the alteration found to have been made to RPI ('in a competition between CPI and RPI as materially changed, I find it hard to see how CPI can win the competition').
Mr Justice Warren avoided being drawn into arguments as to the respective merits of the indices in his interpretive exercise. He did, however, state that RPI and CPI both achieve the purpose of protecting members from the effect of price inflation.
He also recognised that RPI is still widely used. Where there is a power or obligation to review the index that will need to be done within a reasonable period of time or the ability to make any switch may be lost. Mr Justice Warren provided a useful summary of the characteristics and compilation of RPI and CPI, which may assist in the interpretation of similar rules.
Mrs B (PO 9253)
Mrs B was refused an ill-health pension on the grounds that she did not meet either of the definitions set out in the scheme rules. These were a scheme definition of incapacity and the HMRC ill-health condition. In either case the decision to allow the ill-health retirement was conditional upon the scheme trustees and the employer receiving evidence from a registered medical practitioner that the member satisfied the medical criteria set out in at least one of the respective definitions.
The employer based its decision to refuse the application for an ill-health pension on the basis of medical evidence it obtained from its appointed occupational health adviser. This stated that Mrs B's health could improve with (unspecified) medical treatment.
On the basis of this evidence, Mrs B's employer concluded that Mrs B did not qualify for an ill-health pension under the scheme. The medical evidence obtained by Mrs B's employer conflicted with the medical evidence Mrs B had submitted.
The Pensions Ombudsman found that the medical evidence obtained by the employer was flawed for a number of reasons, including that it did not specify the treatments that would supposedly help Mrs B's health to improve or the period of time over which her health was expected to improve.
The Pensions Ombudsman went on to find that Mrs B's employer should not have just followed its own medical evidence but should have evaluated it in light of the medical evidence Mrs B submitted.
The decision was referred back to Mrs B's employer with an instruction to obtain new medical evidence and to pay £500 for the significant distress and inconvenience caused to Mrs B.
This determination provides a useful reminder of how employers and trustees should approach medical evidence in respect of ill health cases.
Decision-makers should not simply follow medical advice that they have commissioned. Instead, they should factor that medical advice into the broader context and question it where necessary.
Such an approach helps decision-makers to consider all the relevant factors rather than simply relying on one set of evidence.
Ms R Sargeant and others v London Fire and Emergency Planning Authority and others
The Employment Tribunal has decided that the new Firefighter's Pension Scheme 2015 does not discriminate on the grounds of age, sex or race.
Transitional rules protecting older workers were held to be valid in the Firefighters Scheme as a proportionate means of achieving a legitimate aim, meaning that there was no direct age discrimination.
In addition, the Tribunal did not find any indirect discrimination on the grounds of race or sex.
This is in contrast to the decision of Judge SJ Willliams in relation to the new scheme for judges (found in the Employment Tribunal case of Ms McCloud & Ors and Mr Mostyn & Ors (13 January 2017). The Fire Brigades Union is to appeal.
Even though these cases focus on public sector schemes, the arguments regarding potential discrimination apply to all schemes where one sector of the membership feels aggrieved by reduced benefits. This case highlights the importance of having evidence and reasoned arguments to support the proposed changes, which stand up to scrutiny, when considering scheme changes.
Ms R (PO-9995)
In Ms R (PO-9995), the Pensions Ombudsman has confirmed that information on the degeneration of the original health complaint or evidence of new medical issues does not need to be taken into account when decision-makers are reviewing previous decisions in respect of awarding ill health early retirement benefits.
The NHS Pension Scheme operates two tiers of ill health early retirement benefits, with tier two offering more generous benefits than tier one.
Ms R is a member of the NHS Pension Scheme and suffered ill-health in 2009. This led to her dismissal from her job with the NHS in 2010. Initially, the NHS Business Services Authority (the Authority) declined to award Ms R any ill-health early retirement benefits. Following an Internal Dispute Resolution Procedure (IDRP) process, the Authority reversed its decision and decided to award Ms R the lower of the two tiers of ill health early retirement benefits.
Ms R brought her complaint to the Pensions Ombudsman, arguing that she was entitled to the higher of the two tiers of ill health early retirement benefits. Part of her argument was based on the degeneration of her health condition and the development of new conditions.
The Pensions Ombudsman agreed that the Authority was correct in reversing its original decision, but that it was also correct in deciding to award Ms R the lower of the two tiers of ill health early retirement benefits. The Authority was not required to consider evidence of new medical conditions or deterioration of the original medical condition.
When reviewing a decision (e.g. under an IDRP process), decision makers are not required to explore medical evidence "in respect of new conditions or deterioration of the original condition that has occurred or become available after the initial decision was made".
Decision-makers can, however, choose whether or not to take into account relevant medical evidence that subsequently becomes available and that relates to the original assessment of the original condition when considering an appeal.
The decision is therefore also useful in confirming the broad powers that decision-makers have when considering the relevance of any such evidence.
Mr R (PO-10746)
Mr R complained about the trustees of the scheme switching from RPI to CPI as the basis for revaluing his pension and also about their failure to inform him of the change.
The Pensions Ombudsman dismissed Mr R's complaint on the basis that the scheme rules included provision for the trustees to effect a change to the measure of inflation to be applied.
This was due to the rules referring to the Pensions (Increase) Act and Orders made under Section 59 of the Pensions Act 1995. Because of the way the rules were drafted (referring specifically to 'Orders'), when such an Order was made in 2011, the trustees implemented the new revaluation basis automatically; they did not have a discretion to permit the retention of RPI. There were also the usual arguments about where there are discrepancies between booklets etc. and scheme rules, the rules will prevail.
The trustees provided incorrect information (or at least incomplete) information from 2011 onwards. Even though the revaluation rate had changed to CPI, annual reports for 2011/2012 and 2013/2014 still referred to RPI, for example.
Although concluding that '[c]lear, unambiguous member communication is essential' and finding that the trustees had failed to provide this, the Pensions Ombudsman went on to say that the annual reports were not 'guaranteed and did not confer any rights to receive benefits'.
Whilst sympathising with Mr R, the Pensions Ombudsman said the distress and inconvenience suffered by him was not significant enough to justify an award for compensation.
This determination provides an example of circumstances where trustees had the ability within their rules to change the applicable inflation index from RPI to CPI.
In this case, it was interesting that the Pensions Ombudsman decided not to make an award for distress and inconvenience. On the facts, this point could probably be argued either way.
Key legislation that came into force on 1 or 6 April 2017
1 April 2017
- Workplace pensions refroms () - Technical amendments to automatic enrolment
- WPR - Removal of NEST's annual contribution limits and transfer bans
- PPF - New PPF pension protection levy ceiling and compensation cap
- PPF - Increase in the PPF administration levy and general levy
6 April 2017
- Tax - Change to eligibility criteria for Overseas Pension Schemes
- Tax - Launch of Lifetime Individual Savings Accounts (LISAs or Lifetime ISAs)
- Tax - Guaranteed Minimum Pension (GMP) increases and revaluation - GMP increases are 1% for the relevant period
Pension Protection Fund - fraud levy to be raised
The Pension Protection Fund is levying a Fraud Compensation Levy in 2017/18. This is the first time in five years that the PPF has raised money for the Fraud Compensation Fund in this way. The levy will be 25p per member, which is the same as levied in 2012/13. The levy is expected to raise around £5 million in total.
The PPF long service compensation cap was amended on 6 April 2017. Individuals who:
- have been a member of a scheme for more than 20 years; and
- have had their compensation capped
will have their long service compensation cap increased by 3% for each year above 20 years of scheme membership.
Automatic enrolment - post staging new employers
The DWP is consulting on two technical changes to the auto-enrolment regime. The changes relate to the position of new employers who fall outside of the planned staging of employer duties up to 1 February 2018. The technical amendments will make the trigger date for new employers when the employer's first worker begins to be employed by the employer.
In addition, the changes will allow post-staging new employers to make use of the three-month postponement option that is currently only available to employers falling within the original staging timetable.