Climate change and pension schemes
The potential impact of climate change on pension schemes is coming under increasing focus, including from the Government. In February the Government tabled amendments to the Pension Schemes Bill giving itself broad powers to make regulations imposing requirements on trustees to secure effective governance of pension schemes with respect to the effects of climate change. The changes will allow the government to impose requirements regarding:
how the scheme's strategy for managing risks is determined and reviewed;
determining, reviewing and revising targets relating to the scheme's exposure to certain risks (the nature of which is to be prescribed in regulations); and
measuring performance against such targets.
A memorandum issued by the DWP says that the powers are designed to ensure that occupational pension schemes are required to act and report in line with the recommendations of the Taskforce on Climate-related Financial Disclosures (TCFD), an industry-led initiative set up to develop a set of recommendations for consistent climate-related financial risk disclosures in mainstream reporting.
The DWP has written to the Pensions Regulator saying that it envisages that in the coming months the Regulator will wish to set out a strategy for dealing with the financial risks arising from climate change, including how this strategy will be resourced and implemented and involving continuing engagement with the TCFD Regulators’ Taskforce. The letter refers to the Regulator's involvement in the Pensions Climate Risk Industry Group, which has made progress developing guidance for pension funds on how pension trustees can address climate-related financial risks as part of their governance processes. The DWP says it intends to work with the Regulator to put this guidance on a statutory footing.
The Pensions Ombudsman section of this Update covers the Ombudsman's determination in the case of Mr D (PO-27469) in which the member complained about the refusal of scheme trustees to provide additional information about how they were managing climate change risk. Although the Ombudsman did not uphold the complaint, it does illustrate the potential for scheme trustees to come under increasing scrutiny from scheme members regarding their approach to managing climate change risk.
Pension Schemes Bill reintroduced in Parliament
In January the Pension Schemes Bill was reintroduced into Parliament following the General Election. For more detail on the Bill, see our e-bulletin. For information on the climate change-related amendments tabled to the Bill since its reintroduction, see our item "Climate change and pension schemes" in this Update.
Investment-related reporting requirements in force from 1 October 2020
Trustees should ensure they have plans in place to comply with various investment-related reporting requirements which will come into force from 1 October 2020. These include:
a requirement for the scheme's statement of investment principles (SIP) to cover the trustees' policy in relation to various matters regarding their arrangement with their fund manager, including the length of the arrangement and how the fund manager's performance is evaluated;
a requirement for defined benefit schemes to make their SIP publicly available free of charge on a website. (This already applies to money purchase schemes);
additional information to be included in the scheme's annual report regarding trustee voting behaviour and how the trustees have followed their policy on investment rights and engagement activity;
additional information which schemes providing money purchase benefits (other than AVCs) must include in their annual report, including the trustees' opinion on the extent to which the SIP has been followed during the year. Much of this information must also be published on a website and "signposted" in benefit statements.
No obligation under EU law for PPF to provide 100% compensation
In the case of Pensions-Sicherungs-Verein WaG v Bauer, the Court of Justice of the European Union (CJEU) has held that EU law does not require EU member states to provide 100% compensation for lost pension benefits where an employer becomes insolvent.
The background to this case is that the EU Insolvency Directive requires member states to take "necessary measures" to protect the interests of employees and former employees in relation to accrued rights to old age benefits under occupational pension schemes in the event of their employer's insolvency. In the UK, that function is fulfilled via the Pension Protection Fund (PPF).
In the case of Hampshire v Board of the Pension Protection Fund, the CJEU held that EU law entitled members to an "individual minimum guarantee" that they would receive at least 50% of the value of their accrued pension entitlement on their employer's insolvency. However, the Advocate General in the Bauer case had suggested that EU member states were required to establish systems that protected pensions in full. Advocate General opinions are not binding on the CJEU, but are given significant weight in the CJEU's deliberations. In the Bauer case, the CJEU did not follow the Advocate General's opinion. However, it did hold that a member state could be in breach of its obligations notwithstanding providing compensation equal to at least half of the employee's accrued pension rights if the reduction to the member's benefits resulted in the employee living below the at-risk-of-poverty threshold determined by Eurostat for the member state concerned.
Under the terms of the UK's withdrawal from the EU, the CJEU's judgement in Bauer is binding on the UK. Hade the CJEU ruled that member states were obliged to provide for 100% compensation, this could have had a significant impact on the PPF levy. The PPF has said that it believes the implementation methodology which it announced following the Hampshire judgment will meet the test stipulated in the Bauer judgment, though there are some details of the judgment that it will need to work through with the DWP. It therefore does not appear likely that this judgment will significantly impact the PPF levy.
Court holds reference to "any other rate" in pension increase rule only permitted higher rate
In the case of Britvic Plc v Britvic Pensions Limited, the court had to consider the meaning of a pension increase rule which provided, "The rate of increase is the percentage increase in the retail prices index during the year ending the previous 31 May but subject to a maximum of five per cent in relation to Pensionable Employment up to and including 30 June 2008 and a maximum of 2.5 per cent in relation to Pensionable Employment on and from 1 July 2008 (or any other rate decided by the Principal Employer)".
The judge held that, given the context in which the rule had been drafted, the draftsman had intended that the words "any other rate decided by the Principal Employer" to allow the Principal Employer only to substitute a higher rate, not a lower rate, and that something had clearly gone wrong with the language of the phrase in brackets. The judge was influenced by the argument that there would have been little point in the first part of the rule setting out the increase provisions in such detail if the intention was to give the Principal Employer complete freedom to decide the rate of increase. The judge's interpretation was also influenced by pension increase legislation which stipulates the basis on which pension increases must be granted in the absence of a scheme rule meeting statutory minimum requirements.
Court holds scheme rules require continued use of RPI for pension increase calculations
In Atos IT Services UK Ltd v Atos Pension Schemes Ltd, the court has held that a reference to "the general index of retail prices (all items) published by the Office for National Statistics" meant RPI, and that where the scheme rules allowed for substitution of a different index "where [RPI] is not published", that referred to RPI not being published for any purpose.
The scheme's principal employer had argued that, although RPI was properly described as the general index of retail prices in 2011 when the relevant trust deed was executed, it had ceased to be capable of being so described in 2013, being replaced by other indices, namely RPIJ or first CPI and subsequently CPIH. The principal employer brought evidence that the Office for National Statistics (ONS) regarded RPI as flawed, only published it because legislation obliged it to do so, and had written to two successive Chancellors of the Exchequer inviting them to consider repealing the legislation that required publication of RPI. However, the court held that the meaning of the words used in the definition had not changed since 2011 and that it was clear that RPI was still "published".
The government's decision in 2011 to switch from RPI to CPI as the basis for calculating statutory minimum pension increases meant that differences in the wording of pension increase rules, which might have appeared inconsequential at the time of drafting, became all important in determining whether a scheme was allowed to use CPI in place of RPI for calculating pension increases. The ONS regard RPI as a flawed index, but decisions to date do not indicate any inclination on the part of the courts to allow this to influence their interpretation of pension increase rules.
Court rules on test to be applied by trustees when considering whether to settle litigation
In Airways Pension Scheme Trustee v Fielder, the court has ruled on the test to be applied by the court when deciding whether to approve a trustee's decision to enter into a settlement agreement in relation to litigation. The court held that the test to be applied was whether the decision was one which a reasonable body of trustees could arrive at. The court was not required to reach its own determination as to whether the settlement as a whole was in the best interests of the scheme.
Rule excluding spouse's pension in cases of marriage after retirement not unlawful
In the case of Carter v Chief Constable of Essex, the court has held that a scheme rule was not unlawful where it provided that a widow's pension would not be payable where the marriage had occurred after the member ceased to be in service. The member, Mr Carter, had retired in February 1977 and had married in 1981. The scheme rules regarding payment of widows' pensions had been changed in April 1978, but only in respect of future service.
Mr Carter sought to bring a claim under the Human Rights Act 1998, but the court held that he was not entitled to do so as the position under the scheme rules had become permanently fixed when he retired in 1977, as the fact that he was not married at that point meant that under the scheme rules there was no possibility that entitlement to a widow's pension could ever arise in respect of him. As this was long before the Human Rights Act came into force, Mr Carter was not entitled to bring a claim based on the Act.
Member's complaint seeking additional climate change risk information rejected
The Deputy Pensions Ombudsman (DPO) has rejected a complaint against the trustee of the Shell Contributory Pension Fund where the member wanted the trustee to provide more information about how the scheme trustee was measuring and managing the potential risks of climate change (Mr D PO-27469). Following an initial query from the member, the Trustee agreed that climate change was one of the biggest risks the Scheme faced and said that this was considered in investment strategies, risk management and covenant monitoring. It offered to meet the member face to face to discuss his concerns. Such a meeting did take place, but did not allay the member's concerns.
The member subsequently requested a copy of the Scheme's recent investment strategy including sections that specifically dealt with climate change, risk management, the relevant sections of the employer covenant, sections of documents that described the techniques and processes used by the Scheme to identify, monitor and respond to climate risk, a copy of the most recent actuarial valuations and extracts from any minutes in the last two years recording decisions made by the Trustee in relation to climate change. The Trustee provided information which it was obliged to provide under disclosure of information legislation such as the scheme's actuarial valuation, report and accounts and statement of investment principles. It also provided its "Responsible Ownership Policy". It declined to provide further information in excess of this.
The member complained to the Ombudsman. The DPO did not uphold the member's complaint, finding no maladministration or breach of a positive disclosure duty.
The DPO's decision in this case confirms that trustees have no general duty to provide information on their approach to managing climate change risk where the information requested is not covered by the trustees' specific disclosure duties. However, as public awareness of climate change-related risk increases and policymakers focus specifically on how pension schemes are responding to this risk, trustees' policies in this area seem likely to come under increasing scrutiny from members in future.
No breach of law where active member benefits valued differently from deferreds following switch to CARE
The Pensions Ombudsman has rejected a complaint from an active member whose final salary benefits were revalued differently from those of deferred members after a scheme amendment changed the basis of accrual from final salary to CARE for future service (Mr R PO-19569).
Amendments made to the scheme in connection with the switch to CARE for future accrual provided that accrued final salary benefits as at the date of the change would be increased by CPI plus 0.5%, capped at 2.5%, while members remained in pensionable service. Under the scheme rules, accrued final salary benefits for deferred members were subject to different revaluation rules based on RPI which would in practice produce a more generous revaluation rate in many cases.
The member complained that the amendment had reduced his accrued rights in breach of section 67 of the Pensions Act 1995 by detrimentally affecting his "subsisting rights". However, the Ombudsman rejected this complaint. The Ombudsman noted that the legislation provided for the subsisting rights of an active member at a particular point in time to be determined "as if he or she had opted, immediately before that time, to terminate his or her active membership". He held that a member's subsisting rights did not include any revaluation increases which might have applied during any future period of deferment, as no period of deferment would have elapsed at that point and it would not be certain whether the member would defer his benefits or transfer them out of the scheme. Further, revaluation in deferment was contingent on the member leaving pensionable service without immediately taking a pension. At the point the amendment was made, there remained the possibility that he would stay in pensionable service until retirement. In any event, the Ombudsman noted that, had the member opted out of membership at the time the amendment was made, he would have been entitled to have his benefits revalued on the deferred member basis.
The Ombudsman's determination cites several different reasons for concluding that the amendment in this case did not affect the member's subsisting rights. The fact the amendment made no difference to the rate of revaluation that would have applied had the member opted out of pensionable service (a) immediately before, and (b) immediately after the amendment appears to be the strongest argument that there had been no detrimental effect to his subsisting rights. The Ombudsman does not cite any case law in support of his conclusion that "subsisting rights" do not include the revaluation rate in respect of any future period of deferment, and we think it is questionable whether this conclusion would be upheld by a court.
Claim for unreduced early retirement pension rejected where member had expressly agreed terms wouldn't apply
The Pensions Ombudsman has rejected a member's claim that he was entitled to an unreduced pension under the scheme rules as a result of accepting voluntary redundancy where the member had signed an agreement which expressly stated that in return for being provided with the voluntary redundancy package offered to him, the member waived any claim he may have had to an unreduced early retirement pension (Mr N PO–21466).
The Ombudsman's determination refers to the judgment in the case of IMG Pension Plan HR Trustees Ltd v German which considered the extent to which an "extrinsic contract" can be used to modify benefits under a scheme's rules. He refers to a passage of the IMG judgment which says, “It is one thing to hold that an extrinsic contract may be enforced to supplement a trust deed where the deed does not contain any contrary provisions. It is quite another to say that an extrinsic contract may override contrary provisions in a trust deed unless the extrinsic contract amounts to consent on the part of the beneficiaries.”
In the case in question, the Ombudsman decided that the wording of the agreement signed by the member did amount to consent which overrode the scheme rules. However, a notable feature of the Ombudsman's determination is that there had been an earlier attempt to remove the member's right to an early retirement pension on voluntary redundancy, and the Ombudsman determination indicates a degree of doubt as to whether that earlier attempt was sufficient to remove the member's right. In 2012, the member had been given a choice between (a) keeping his existing normal pension age of 60 and agreeing to pay higher contributions, (b) making no extra contributions and having his normal pension age increased to 65, or (c) opting out of active membership and becoming a deferred member. The letter notifying the member of these options had also notified him of the intention to remove the right to unreduced early retirement pension on voluntary redundancy. However, as all of the options had involved extinguishing the right to an unreduced pension in the event of voluntary redundancy, the Ombudsman said he could not see that this provided positive, valid consent for the right to be removed.
The issue of the extent to which extrinsic contracts can be used to modify rights under a scheme's trust deed and rules is a complex area of law which has yet to be considered by the Supreme Court. Any attempt to modify a member's rights under a pension scheme through the use of extrinsic contracts rather than an amendment to the scheme's rules therefore needs to be approached with great care.
Complaint in divorce case where member's status changed from active to pensioner membership
The Deputy Pensions Ombudsman (DPO) has upheld a complaint where the way in which the Principal Civil Service Pension Scheme (PCSPS) handled a pension sharing order on the member's divorce led to the member's ex-spouse receiving significantly lower benefits than she was entitled to (Ms N PO-23696).
In January 2015, the scheme was notified by the member's employer of the member's intention to retire with effect from 30 June 2015. In June 2015, while the member was still in active membership, the Scheme quoted a cash equivalent transfer value (CETV) of £111,565 for divorce purposes. In September 2015, the court made a final order in the member's divorce proceedings stipulating that 58.6% of the member's CETV should be transferred to the member's ex-spouse from the date of the decree absolute, which was granted on 21 September 2015. At that point, the member had not yet drawn any benefits from the Scheme. In November 2015, the member returned completed retirement forms to the Scheme. His retirement benefits, including a pension commencement lump sum, were put into payment, backdated to 1 July 2015. Following some correspondence over the fee for implementing the pension sharing order, the pension sharing order was implemented in December 2015. The member's ex-spouse was granted £44,220, being 58.6% of the value of the member's pension after payment of the pension commencement lump sum to the member, as the Scheme worked on the basis that the lump sum had been due on 1 July 2015, the date from which it had provided for the backdated benefits to take effect.
The DPO held that the Scheme should have applied the pension sharing order to the member's benefits as at 21 September 2015, the date of the decree absolute. She held that the Scheme had been wrong to carry out the calculation on the basis that the member had already taken his benefits, including the lump sum at that point, as the member had not actually returned the retirement forms to the Scheme until November 2015. She ordered the Scheme to recalculate the ex-spouse's benefits as at 21 September 2015 on the basis that the member's benefits had not been brought into payment at that point, with the result that the ex-spouse's percentage share of the benefits was calculated by reference to the value of the benefits before they were reduced by the member taking a pension commencement lump sum.
This determination underlines the need for schemes to take great care to implement a pension sharing order correctly if a member is taking his benefits at around the same time as the pension sharing order is made, as in such cases the exact date as at which the ex-spouse's percentage share of the benefits falls to be calculated could be particularly crucial.
Pension Protection Fund
Final form levy documentation for 2020/21 published
In December the PPF published its final form levy documentation for 2020/21.
The accompanying policy statement says that proposals for changes to the rules were extremely limited, as 2020/21 marks the final year of a three year period during which the PPF has sought to maintain stability in the rules.
Regarding the impact of GMP equalisation on an employer's insolvency score, the PPF says it will allow an employer to request an adjustment to its insolvency risk calculation where all of the following conditions apply:
a specific amount can be identified in accounts used to calculate one or more Monthly Scores that solely relates to a GMP equalisation adjustment;
allowing the adjustment would result in the company being viewed as reporting a pre-tax profit rather than a loss; and
allowing the adjustment would result in a change of Mean Score to a Levy Band with a lower Levy Rate.
The PPF has clarified some of its wording re guarantor strength reports (required where a Type A contingent asset will result in a levy saving of £100,000 or more).
Contingent asset certificates need to be submitted on TPR's exchange system by 31 March 2020. (Where hard copy documents also need to be submitted, the deadline for those is 5pm on 1 April 2020, but the relevant submissions on Exchange still need to be made by 31 March.)
PPF consultation on revised system for calculating likelihood of employer insolvency
Following its appointment of Dun & Bradstreet as its new risk services provider, the PPF has consulted on changes to its insolvency risk scoring methodology from levy year 2021/22 onwards. The consultation forms the first part of a wider consultation on the PPF's levy methodology that will conclude with the setting of rules for the 2021/22 levy in December 2020.
The PPF says its view is that the current model developed with Experian is working well. Its starting point has therefore been only to make changes to scoring methodology where there is a clear need to do so. It says D&B’s analysis suggests "Scorecard 1" (used for many of the largest employers) has been under-predicting insolvencies, so changes are planned to calculations in this area. The PPF expects this to mean increased levies for larger employers, with corresponding decreases for some smaller entities and not-for-profits.
GMP equalisation information note
In December 2019, the PPF issued an information note on GMP equalisation to assist schemes preparing to submit s179 valuations and certify Deficit-Reduction Contributions (DRCs). The note says it is the PPF's expectation that all valuations with an effective date after the date of the judgment in the Lloyds Bank GMP equalisation case (26 October 2018) will include an interim allowance for GMP equalisation. The information note sets out some principles for calculating such interim allowances. The PPF says that it is content for such allowances to be calculated on a "best estimate" basis.
Regulator publishes determination notice in Dominic Chappell BHS case
In January the Determinations Panel of the Pensions Regulator published its determination notice concerning the issue of contribution notices to Dominic Chappell under its moral hazard powers in connection with the sale of BHS. For more information click here.
Response to Future of trusteeship and governance consultation
In February the Pensions Regulator published its response to its "Future of trusteeship and governance" consultation. For more information, see our e-bulletin.
Latest on timing of DB funding code
Writing in Professional Pensions, the Pensions Regulator's CEO has said that the Regulator's first consultation on its defined benefit funding code will be in March and will focus on funding principles, and that there will be a second consultation later in 2020 on the detail of the code.
Pensions Regulator plans to work one to one with scheme administration firms
According to reports in the pensions press, the Pensions Regulator's executive director, David Fairs, has said that the Regulator plans to assess the top 75 scheme administrators to identify strategically important ones with which it intends to build one to one relationships over the next two years. According to the reports, Mr Fairs suggested that these relationships could focus on areas such as trustee relationship management, transition of clients, data quality controls, scams due diligence, member engagement, systems and automation, administrator resourcing and training, business continuity and cyber resilience. He said that the Regulator has no means to compel administrators to engage with it in this way, but hopes that they will do so on a voluntary basis.
GMP equalisation guidance
On 20 February, HMRC published its Guaranteed Minimum Pension (GMP) equalisation newsletter addressing some of the tax issues which arise in relation to GMP equalisation. For more information, click here.
Technical consultation: Fifth Money Laundering Directive and Trust Registration Service
The Government has consulted on extending the Trust Registration Service as part of its implementation of the EU's Fifth Money Laundering Directive (MLD 5) into national law.
The Fourth Money Laundering Directive (MLD 4) was transposed into UK law in June 2017. Although MLD 4 was not specifically targeted at pension schemes, it did bring in new requirements on trusts, thus imposing additional compliance requirements on many pension schemes. These initially comprised record-keeping requirements and, depending on what taxes the pension scheme had been liable for, potentially an obligation to register with the new Trust Registration Service (TRS). However, in a last minute U-turn, HMRC announced that registered pension schemes would not be required to register on TRS.
There had been concerns that the regulations implementing MLD 5 might require pension schemes to register with the TRS. The draft regulations published with the consultation exclude registered pension schemes and trusts of life insurance policies from the obligation to register, but if the regulations are brought into force as drafted, it appears that unregistered pension schemes (EFRBS) will be required to register.
Managing Pension Schemes service newsletter
In January, HMRC published its Managing Pension Schemes service newsletter detailing its plans for extending the scope and functionality of its Managing Pension Schemes service. Additional features which HMRC intends to introduce include the ability to:
compile, submit and view an Accounting for Tax return;
view financial information about the scheme;
file Pension Scheme Returns; and
compile event reports.
Whilst HMRC is delivering the above features, it intends to migrate schemes to the Managing Pension Schemes service. More information about this, including timing, will be given in future newsletters. Once all schemes have been migrated to the Managing Pension Schemes service, HMRC will decommission its Pension Schemes Online service.
Countdown Bulletin 50 set out how HMRC will allocate part payments
HMRC's Countdown Bulletin 50 dealing with the end of contracting-out deals with how HMRC will deal with the situation where a scheme makes a part payment of a debt which HMRC has informed them is due. HMRC says that in such circumstances, scheme administrators will be responsible for identifying the individual member(s) to whom they wish the part payment to be allocated.
PASA consultation on DB Transfers Code of Good Practice
In February the Pensions Administration Standards Association (PASA) launched a consultation on its draft Defined Benefit Transfers Code of Good Practice. The aims of the code are to: improve the overall member experience through faster, safer transfers; improve communications and transparency in the processing of transfers; and improve administrator efficiency in the transfer process.
In July 2019, a PASA working group produced guidance on what it defined as a "Standard" transfer case with the intention of producing a part 2 of the guidance to cover "Non Standard" cases. However, it has now decided to produce a Code of Good Practice to cover all defined benefit transfer cases instead of producing a second part to the guidance. The code will not itself have legal force, but PASA anticipates that the Pensions Ombudsman will refer to it as a source setting out what good industry practice looks like.
The draft code suggests that a guaranteed transfer value quote should be issued within 7-10 days of a member's request, or within 12-15 working days if referral to the Actuary for review or sign off is required.
Responses to the consultation are sought by 30 April 2020 and PASA intends to release the final form code on 1 September 2020.
PASA guidance on transferring to a master trust
The Pensions Administration Standards Association (PASA) has published best practice guidance on transferring members to a master trust. The guidance covers transfers both from other master trusts and from non-master trust DC schemes.
IEMB "standing aside" from the Code of Good Practice on Incentive Exercises
The Incentive Exercises Monitoring Board (IEMB) has announced that it is going to "stand aside" from the Code of Good Practice on Incentive Exercises and will no longer update it. The IEMB's website will close shortly and the Code will be published on the Pensions Regulator's website. The Code was originally launched in 2012 in response to concerns that exercises incentivising members to transfer out of defined benefit schemes or accept alternative benefits were being conducted in a way which disadvantaged scheme members.
ICO consultation on draft right of access guidance
The ICO has consulted on draft guidance on the obligations of a data controller to comply with requests from individuals wishing to exercise their right under data protection legislation to access their personal data.
The draft guidance covers such matters as:
what rights an individual has to access his/her personal data;
how to recognise a data subject access request (DSAR);
what steps the ICO expects a data controller to take to comply with a DSAR;
time limits for complying with a request;
the circumstances in which a data controller can refuse to comply with a request;
the level of checks which it is reasonable to make to verify the identity of a person making a DSAR; and
the approach to be taken where information requested includes information about other individuals.
STEP Guidance Note on the effect of the GDPR on trusts and estates
STEP (the Society for Trusts and Estates Practitioners) has published a guidance note summarising its understanding of how certain aspects of the GDPR should be applied in the context of private, non-charitable, trusts and estates. The guidance has been prepared following discussions between STEP and the ICO, though has not itself been endorsed by the ICO. Although the guidance is not aimed at pension schemes, many of the issues it addresses also arise in a pension scheme context, for example how the GDPR interacts with disclosure laws when a beneficiary of a trust makes a data subject access request.
Launch of consultation on RPI changes put back to Budget Day
In our previous Update we reported that the government had announced an intention to consult on whether to align the RPI with the Consumer Prices Index including owner occupiers' housing costs (CPIH) between 2025 and 2030. The announcement said that the consultation would open in January, but the launch of the consultation has since been put back to Budget Day (11 March).
APPT and PMI both launch professional trustee accreditation programmes
The Association of Professional Pensions Trustees (APPT) and Pensions Management Institute (PMI) are both launching accreditation programmes for professional trustees. Applications for the PMI's APTitude programme opened on 24 February. It has been reported that the APPT's programme will open in April.