This decision affects schemes which went into winding up between 6 April 1997, when section 73 of the Pensions Act 1995 came into force, and 6 April 2005, when section 270 of the Pensions Act 2004 took effect.
In Cripps v Trustee Solutions Ltd , Dubery (and others), the Court of Appeal had to rule on the relationship between the statutory priority order on winding-up (as set out in section 73 of the Pensions Act 1995) and the status of benefits accrued in the so-called Barber window (that is, the "window" period between the date of the European Court's judgment in Barber (17 May 1990), and the date schemes equalised male and female normal retirement ages). The case determines where the benefits of those members who had accrued benefits in that window, but who had not yet reached the scheme's normal retirement age, fall in the priority order; in particular, whether those benefits are classed as deferred or whether they rank higher in the order as an "entitlement" to pension.
At first instance, the High Court held that benefits in relation to all of the service of a member who had accrued benefits during the Barber window (but who had not yet reached the scheme's normal retirement age) fell in the higher priority category. However, the Court of Appeal held that only those benefits relating to service during that window qualified as an "entitlement" to pension (and therefore, fell within the higher priority category at section 73(3)(b) of the 1995 Act: as being "where a person’s entitlement to payment of pension or other benefit has arisen”). Benefits accrued by these members outside of that window did not fall into the higher priority category.
The Court's decision has clarified how Barber window benefits should be treated on a winding-up and will allow outstanding wind-ups of affected schemes to proceed.