Trustee Quarterly Update - December 2018

High Court rules schemes required to equalise GMPs

In a landmark judgment handed down on 26 October 2018 in the case of Lloyds Banking Group Pensions Trustees Limited v Lloyds Bank plc, the High Court has ruled that pension schemes are required to equalise benefits for men and women to offset the inequality that results from GMP legislation. The judgment has implications for almost all schemes with defined benefits. Scheme trustees should consider the implications of the judgment for their own scheme.  For more information, see our e-bulletin.

Supreme Court rules no right to switch from RPI to CPI in Barnardo's v Buckinghamshire

In a judgment handed down on 7 November 2018, the Supreme Court has held that scheme rules which provided for pension increases in line with RPI "or any replacement adopted by the Trustees without prejudicing Approval" did not allow the scheme trustees to replace the use of RPI with a different index in circumstances where RPI continued to be published.

The relevant rules provided for increases to be in line with the "Retail Prices Index" which was defined as "the General Index of Retail Prices published by the Department of Employment or any replacement adopted by the Trustees without prejudicing Approval. Where an amount is to be increased 'in line with the Retail Prices Index' over a period, the increase as a percentage of the original amount will be equal to the percentage increase between the figures in the Retail Prices Index published immediately prior to dates when the period began and ended, with an appropriate restatement of the latter figure if the Retail Prices Index has been replaced or re-based during that period".  The Court held that this wording referred to the scenario where RPI had been replaced as an official index, not to the Trustees choosing to replace RPI notwithstanding that it continued to be published.

The judgment is significant for pension schemes with similarly worded rules.  It is also indicative of the approach which courts will take generally when construing pension scheme documents, namely to attach great weight to the choice of words and the way in which they are used within the document, attaching less weight to the "background factual matrix" than they might do in certain commercial contracts.

Court of Appeal rules on meaning of "basic pay" 

In the case of Ministry of Justice v Merry, the Court of Appeal has ruled, in relation to the Principal Civil Service Pension Scheme, that the term "basic pay" included pay which the member had received at the overtime rate for working weekends.  Key to the court's ruling was that in the case in question, the employer had been contractually obliged to offer the member "reasonable hours" of weekend work and the member had been contractually obliged to work those hours.

Our thoughts

This judgment provides a useful indicator of the approach the courts are likely to take if the term "basic pay" is used in a scheme's rules without being defined.  If the term "basic pay" is defined, the courts will construe it in accordance with the definition which could result in a different conclusion to that reached in this case.

EU Court holds PPF compensation must be at least 50% of each member's benefits

In a judgment given on 6 September 2018, the Court of Justice of the European Union held that:

• the EU law obligation to protect the pension rights of current and former employees on an employer's insolvency requires Member States to guarantee every individual without exception compensation corresponding to at least 50% of the individual's accrued pension rights; and
• the relevant EU directive allows individuals to enforce their rights directly against the PPF.

Following the judgment, the PPF issued a statement saying that the vast majority of PPF members will already receive compensation in excess of 50% of their accrued benefits, so it expects the number of members affected by the ruling to be very small.  The PPF has said that for those members affected, it will work to implement the judgment as quickly as possible.

Our thoughts

The legal impact of this decision post-Brexit could potentially raise quite complex issues.  However, it appears that the PPF intends to implement the judgment rather than enter into a detailed legal analysis of the interaction between the relevant EU law and UK Brexit legislation.

British Airways case to be appealed to Supreme Court

In our September 2018 Update, we reported on the Court of Appeal's decision in British Airways plc v Airways Pension Scheme Trustee Ltd in which the court held that the trustees were not entitled to use the scheme's amendment power to increase pensions against the employer's wishes.  The scheme trustee has since confirmed that it intends to appeal to the Supreme Court, subject to the outcome of its application to the court for permission to use the scheme assets to fund the appeal.  That application is due to be heard in the week commencing 17 December 2018.  The appeal itself has been provisionally listed to start on 3 July 2019. 

EU Court holds part-timers excluded from membership can claim re service before April 2000

In a judgment given on 7 November 2018, the Court of Justice of the European Union (CJEU) has held that a worker who has been excluded from pension scheme membership on grounds of working part-time is entitled to bring a claim in respect of service before 7 April 2000.  

The case was brought by a part-time judge who worked as such from 1978 until his retirement in 2005.  His right to claim back-dated membership of the pension scheme available to full-time judges had been established, but it was disputed whether he was entitled to backdated membership for all his service, or only service since 7 April 2000, the date Member States were required to give effect to the EU directive on part-time workers' rights.  The CJEU held that a worker who has been excluded from pension scheme membership on grounds of working part-time is entitled to bring a claim in respect of service before 7 April 2000.  (However, the CJEU distinguished the case of a worker who had already retired before that date.)

Our thoughts

In practice many pension schemes will have allowed part-time workers to join since around 1994 when the CJEU held that excluding a person from scheme membership on grounds of part-time working was capable of amounting to indirect sex discrimination, so the impact of this judgment on schemes generally may be rather less than might at first appear.

Regulations introduce new scheme governance requirements to implement IORP II

The government has made regulations introducing a new legal requirement for pension scheme trustees to operate an "effective system of governance", but the detail has been left to a Pensions Regulator code of practice which has not yet been published.  The regulations stem from the EU directive "IORP II" which deals with the operation of occupational pension schemes.   

For more information click here.

Regulations require changes to statement of investment principles

The Government has passed new regulations which will make changes to the law governing pension schemes' statements of investment principles (SIPs) and related reporting requirements.  The main impetus for the changes was a concern that existing legislation on investment policies taking social, environmental or ethical considerations into account is confusing, as it does not make clear whether it is referring to such factors being taken into account for purely financial reasons or for other reasons.

From 1 October 2019 a SIP (including a "default arrangement" SIP in a money purchase scheme) will have to include:

• how the trustees take account of "financially material considerations".  The regulations expressly spell out that these include environmental, social and governance considerations including climate change; 
• the extent (if at all) to which the views of members and beneficiaries are taken into account in investment selection including their ethical views and their views in relation to social and environmental impact; and
• the trustees' policy in relation to "stewardship" of investments, including the exercise of voting rights and also the methods by which the trustees will engage with investee companies and investment managers regarding performance, strategy, risks, social and environmental impact and corporate governance.

Schemes that provide money purchase benefits (other than just AVCs) and which are required to produce a SIP will from 1 October 2019 be required to publish the SIP on a website.  From 1 October 2020, such schemes will be required to prepare a statement on how the SIP has been followed and, if applicable, reviewed during the year.  The statement will have to be included in the scheme's report and accounts and published on a website, with the website details included in members' benefit statements.

The regulations as first drafted would have required trustees to prepare a separate statement setting out how the trustees would take account of member views in relation to matters covered by the SIP, but this aspect of the proposed changes has now been dropped, with the Government clarifying that its policy is that trustees should never be obliged to take member views into account in relation to matters covered by the SIP.

Action required

Now that the regulations have been published in final form, trustees should ensure they have a plan in place for complying with the new requirements. 

Master trust authorisation regime now in force

We have previously reported on the introduction of legislation prohibiting the operation of a master trust unless the scheme is authorised by the Pensions Regulator.  Broadly, a master trust scheme is an occupational pension scheme which provides money purchase benefits and is intended for use by two or more unconnected employers.  The authorisation regime came into force on 1 October 2018.  Existing master trusts have six months from that date in which to apply for authorisation.  The Pensions Regulator's code of practice on master trusts is now in force.  For further documentation published by the Regulator in relation to the master trust regime, see the master trust section of the Pensions Regulator's website.

Brexit-related pensions regulations

The Government has published draft regulations (the Occupational and Personal Pensions Schemes (Amendment etc) (EU Exit) Regulations 2018) which make Brexit-related amendments to numerous sets of pensions regulations.  Many of the amendments are in the nature of minor consequential changes.  However, there is one change which, if intentional rather than the result of a drafting error, could have significant implications for schemes' investment strategies.  Current legislation provides that the assets of a pension scheme must consist predominantly of investments admitted to trading on "regulated markets".  The draft Brexit regulations alter the definition of "regulated markets" to "UK regulated markets", a much narrower definition which does not mirror the existing "regulated markets" definition but instead provides that a UK regulated market is a "recognised investment exchange" as defined in legislation, but not an overseas investment exchange.

The explanatory note to the regulations says that no significant impact on the private sector is foreseen as a result of the regulations.  This suggests that the change to the investment provisions is likely to be a drafting error.  However, we are not aware of the Government having confirmed this point.

Separately, the regulations provide for the repeal of the cross-border schemes regulations with effect from 29 March 2019. 

New guidance on awards for non-financial injustice

The Pensions Ombudsman has published revised guidance on the awards which the Ombudsman will make in respect of non-financial injustice.  Where the Ombudsman takes the view that non-financial injustice is more than nominal and therefore merits an award, he will normally categorise the injustice as either "significant", "serious" or "severe", which will typically result in an award of £500, £1000 or £2000 respectively, though the Ombudsman may award more than £2000 for non-financial injustice in exceptional circumstances.  For each category, the guidance lists factors that make it likely that the case will be placed in that category.  For example, if a member is prevented from making an informed life decision at a critical time (eg whether to retire early) that is an indication that the case will be categorised as "severe".

Ombudsman upholds complaint that disproportionate transfer due diligence caused unnecessary delay 

In the case of Mr S (PO-19383) the Deputy Pensions Ombudsman (DPO) has upheld a member's complaint that a transferring scheme's due diligence for a transfer to the Universities Superannuation Scheme (the USS) was disproportionate and caused unnecessary delay.  The USS is one of the largest occupational pension schemes in the UK by assets under management, and the member who had made the transfer request could demonstrate that he was already a USS member, so there was no real doubt that the transfer was legitimate.  Nevertheless, the transferring scheme administrator stuck rigidly to its due diligence procedure.  This included asking for the USS's deeds, including deeds of participation by employers, as well as a "live signature" on a certified copy of a scheme bank account.  Completion of the due diligence process delayed the transfer value by several months.  

The DPO said that, having confirmed the identity of the scheme through its registration with HMRC, it was difficult to see any reason why the transferring scheme's administrators would have continued to doubt the legitimacy of the receiving scheme.  The DPO made clear that she did not consider that verifying receiving schemes via their registration alone would be sufficient in all cases.  However, she found that it would have been sufficient in the particular case in question.  She awarded the member an amount in respect of investment returns lost as a result of unnecessary delay plus £500 for distress and inconvenience. 

Our thoughts

In our last Update we reported on the case in which the Ombudsman had upheld a complaint against Northumbria Police Authority for failing to carry out adequate due diligence before making a transfer.  In that case the Ombudsman specifically criticised the Authority for not acquiring a copy of the receiving scheme's trust deed and rules to check that it was an occupational pension scheme and able to accept the transfer.  This illustrates the need for due diligence procedures to have a degree of flexibility that takes account of the nature of the proposed receiving scheme.  It is clear that the Ombudsman will expect schemes to make more thorough checks if asked to make a transfer to an unknown scheme, but may be critical of a scheme that insists on making those same checks for a transfer request to a large well known scheme such as the USS where the scheme's legitimacy is not in doubt.

Pensions Ombudsman considers he is a "competent court" for purposes of recouping overpayments 

In our June Update we reported on the case of Burgess v BIC in which the judge expressed the view: (a) that a trustee's right to recover overpayments from future benefit payments is not subject to a limitation period; and (b) that the Pensions Ombudsman is not a "competent court" in the context of section 91 of the Pensions Act 1995 which says that, in a case of dispute, a right of set-off cannot be exercised against a person's pension entitlement  unless the obligation has become enforceable under an order of a "competent court".  In his determination in the case of Dr E (PO-16856), the Ombudsman has made clear that he will make determinations in line with point (a) (no limitation period), but that he disagrees with the judge on point (b), ie the Ombudsman does regard an order made by him as an order of a "competent court" for the purposes of exercising a right of set off.  As the judge's comments in Burgess v BIC were not essential to the ruling in that case, they are not legally binding.  There is therefore a degree of legal uncertainty in relation to both these points until such time as a court specifically rules on them.

Ombudsman orders scheme to re-take death benefits decision after lump sum paid to deceased's ex-girlfriend

In the case of Mr S (PO-19400) the Deputy Pensions Ombudsman has upheld a complaint by a deceased member's father after the scheme paid a lump sum death benefit to the deceased member's ex-girlfriend.  The ex-girlfriend had been named on the member's expression of wish form completed six years prior to the member's death.  However, the member's father gave evidence that the relationship had been brief, the woman named on the expression of wish form had broken off all contact with the member years before his death, and that both had subsequently formed relationships with new partners.  The insurance company which operated the scheme had apparently understood the scheme rules as requiring it to pay the lump sum death benefit to the person named on the expression of wish form, but this was a mistake, as the scheme rules actually gave it discretion over the destination of the lump sum payment.  The Ombudsman upheld the complaint and ordered the scheme to take the decision afresh, regardless of whether the amount originally paid to the recipient of the lump sum was recoverable.

Our thoughts

This was a particularly extreme case, but it does illustrate the importance of trustees understanding the extent of their discretion under the scheme rules in relation to lump sum death benefits.  Where an expression of wish form is not legally binding, trustees should always make enquiries to check whether circumstances have changed significantly since the member completed the form.  Regularly reminding members to update their forms in the event of a change of circumstances may help to avoid cases such as this one where it seems very unlikely that the form still accurately represented the deceased member's wishes immediately prior to his death.

Disclaimer could not protect scheme from error of 30% in quoted figure 

In the case of Mrs S (PO-15486) the Pensions Ombudsman has upheld a complaint where an incorrect transfer value was provided to a member's wife in connection with divorce proceedings.  The original value quoted was almost £990,000 so the pension sharing arrangements formed a significant element of the overall divorce settlement.  However, in the course of implementing the pension sharing order, the scheme administrator realised that the transfer value had been overstated by approximately 30%.  As a result, the pension sharing order was re-visited and Mrs S incurred additional legal and financial advice costs in relation to the revised order.  The Ombudsman ordered the scheme's trustees to compensate Mrs S for these additional costs (£5845 in total) plus £1500 in respect of the distress and inconvenience she had suffered.  

The original transfer value had been accompanied by a disclaimer stating that it was for information only and that on receipt of the pension sharing order, it would be re-calculated and would differ from the figure initially quoted.  However, the Ombudsman held that the figures should nevertheless have been based on correct data and that the disclaimer did not provide for the figures to be incorrect by as much as they were, ie 30%.

Our thoughts

This case shows that a disclaimer stating that the final figure will be different from the one initially quoted is unlikely to absolve the trustees from liability if the initial figure is based on incorrect data and therefore out by a wide margin.

Reduction in late retirement factors does not constitute ‘material change’ for purposes of Disclosure Regulations 

In the case of Mr E (PO-20770), the Pensions Ombudsman has held that a change to late retirement factors does not constitute a "material change" to the basic information about the scheme listed in Part 1 of Schedule 2 of the Occupational and Personal Pension Schemes (Disclosure of Information) Regulations 2013.  Changes to the basic information listed in that part of the regulations have to be notified to members before or as soon as possible after the change and in any event within three months.  The basic information includes "how benefits are calculated".  However, the Ombudsman took the view that the change in late retirement factors was a change to "variable factors applied to the final benefit calculation", not a change to "how benefits are calculated" within the meaning of the regulations.

Our thoughts

The Ombudsman's determination provides useful clarification regarding the Ombudsman's interpretation on a point that will arise for many schemes.  Nevertheless, if trustees are contemplating changes to early or late retirement factors, they should consider the extent to which this will impact members' benefits and whether it would be good practice to communicate the change to those members likely to be affected.

Pensions Regulator announces new more interventionist regulatory approach

On 17 September 2018, the Pensions Regulator announced that it will be taking a new approach to workplace pensions regulation.  The announcement says that from October 2018 onwards, the Regulator will be monitoring an increasing number of schemes more closely.  

The Regulator says it will introduce dedicated one-to-one supervision for 25 of the biggest DC, DB and public service schemes.  In addition, a "higher volume" supervisory approach is to be piloted with approximately 50 DB schemes to assess compliance with messages in the Regulator's 2018 annual funding statement, specifically concerning whether schemes are being treated fairly when it comes to dividend payments to shareholders.  Over time the Regulator expects hundreds of schemes to experience "higher volume supervisory approaches" from it in order to tackle "different risks across the pensions landscape".

Regulator confirms schemes free to update  member communications reflecting TPAS changes

In a joint letter, the Pensions Regulator and Department for Work and Pensions have addressed the fact that TPAS's dispute resolution function has now moved to the Pensions Ombudsman, but the legislation setting out what schemes must tell members about TPAS and the Pensions Ombudsman has not yet caught up with this change.  The letter confirms that TPR will not look to impose penalties on trustees who update the information provided to members to reflect the following:

• complaints or disputes concerning workplace or personal pension arrangements should be referred to the Pensions Ombudsman; and
• general requests for information or guidance should be referred to TPAS.

The letter also refers to the fact that in addition to the main adjudication service, the Pensions Ombudsman's office also offers an "Early Resolution Service" (ERS).  Where the ERS is used, the Ombudsman does not require the member to have gone through the IDRP first.

Relief at source newsletter

On 13 September 2018, HMRC published a "Relief at source pension schemes newsletter".  Among other things, the newsletter reminds scheme administrators that in January 2019, HMRC's notification of residency status will include a "C" on the notification of residency status for members who live in Wales.  This development relates to the fact that from tax year 2019/20, the Welsh Government will have the power to set income tax rates for individuals resident in Wales.  For tax year 2019/20 the Welsh Government is proposing to set the rates at a level which means the rates paid by Welsh taxpayers will continue to be the same as those for taxpayers in England and Northern Ireland.

The newsletter also reminds administrators that they should not claim relief at source for a member unless the member either has a NI number or has provided a statement giving reasons why he or she does not have one.

Countdown bulletins cover reconciliation queries

HMRC has published Countdown bulletins 37, 38 and 39 on the end of contracting-out.  The bulletins set out the approach to financial reconciliation that HMRC will follow, in particular with regard to the payment of contribution equivalent premiums.  Bulletin 38 also covers HMRC's approach to "stalemate" queries.  HMRC will accept such queries up to and including 31 December 2018 and will investigate them until March 2019.  If a query ultimately remains at stalemate, scheme administrators will be required to accept HMRC records.  Bulletin 39 says that due to a higher than forecast increase in queries in the run up to the 31 October 2018 deadline, HMRC is currently unable to sustain the agreed 3 month turnaround time for HMRC responses, but is committed to recovering its turnaround times and responding to all queries by 31 March 2019.

Pension schemes newsletter 103 – importance of updating scheme administrator details

Pension schemes newsletter 103, published September 2018, says that HMRC is about to write to scheme administrators who are shown as "inactive" on the Pension Schemes Online service.  Schemes that receive a letter from HMRC should sign in to Pension Schemes Online and update their details.  HMRC warns that without up-to-date details, it may not be able to move administrators to its Manage and Register Pension Schemes service which may leave administrators unable to access the service for schemes that they administer.

Draft 2019/20 Levy Determination published

The PPF published its draft 2019/20 Levy Determination and related documents on 20 September 2018.  As per previous PPF announcements, the draft levy documents say that in order to be recognised for 2019/20, Type A and Type B contingent assets (broadly, group company guaranties or security over cash or other assets) that include a fixed cap and are in the PPF's old standard form will need to be re-executed in the standard form published in January 2018.  The PPF will classify such cases as a special type of re-certification which will require a legal opinion or a "refresh" of an existing legal opinion.  As this will require the submission of hard copy documents, the deadline for submission will be 5pm on 29 March 2019.  

Updated assumptions guidance for section 179 and section 143 valuations

The PPF has published updated valuation assumptions and guidance for section 179 and section 143 valuations.  These are the valuation assumptions used for assessing the scheme's funding position on the PPF basis and for assessing whether a scheme should enter the PPF following an employer insolvency event respectively.  The updated section 179 assumptions apply to valuations with an effective date on or after 1 November 2018.  The updated section 143 assumptions apply to valuations with an effective date on or after 13 June 2018.

Pensions minister launches simpler 2 page benefit statement

At the Pensions and Lifetime Savings Association (PLSA) annual conference on 18 October 2018, pensions minister Guy Opperman launched a "simpler annual pension statement" designed as a model for providing scheme members with key information in a two page statement.  The wording of the statement has been drafted on the assumption that the scheme is money purchase.  Use of the new short form statement is not currently mandatory, but the EU directive IORP II contains provisions on standardised benefit statements and the model statement appears to have been designed with a view to showing how schemes can comply with the relevant IORP II provisions once the government fully implements the directive (which it has said it intends to do notwithstanding Brexit).

ICO guidance on passwords and encryption

The ICO has published guidance on passwords and encryption.  On passwords, the ICO recommends that those with responsibility for password policies:

• only set password expirations if absolutely necessary, as regular expiry often causes people to change a single strong password for a series of weak ones;
• require passwords to be at least 10 characters, but do not set a maximum length unless this is necessary due to limitations of the website code;
• should allow the use of special characters, but not insist on it;
• should screen passwords against a "password blacklist" and not allow users to use a common weak password and common words or phrases that relate to the service.  The list should be updated on a yearly basis.

The ICO guidance on encryption says that organisations should have an encryption policy.  It explains the basics of encryption and what the key considerations are.

Lifetime allowance to increase to £1,055,000 for tax year 2019/20

The Budget on 29 October 2018 confirmed that for tax year 2019/20 the lifetime allowance will rise in line with CPI inflation to £1,055,000. 

Government consults on CDC schemes

The Government is consulting on legislation to allow the establishment of collective defined contribution (CDC) schemes. A CDC scheme is a type of money purchase scheme under which contributions are invested in a collective fund.  Because the fund is managed on a collective basis, there is no need for members to make choices about the investment of funds or the way of converting the fund into a benefit on retirement.  A specified level of benefits is targeted for each member, but benefits can be adjusted up or down in the light of the assets available, and the future target level of benefits can also be adjusted.  The consultation has been prompted by a desire on the part of Royal Mail and the Communication Workers Union to establish a CDC scheme for the benefit of Royal Mail's workforce.

The consultation notes that the quality of member communications for a CDC scheme is particularly key, as members need to understand that the target level of benefit is not guaranteed, and that the nature of the scheme means that the level of pension in payment may decrease.

The consultation goes into some detail about how the Government envisages various aspects of the existing statutory regime operating in relation to CDC schemes.  As with master trusts, the Government envisages that CDC schemes will require authorisation from the Pensions Regulator.

The Government says it is keen to bring forward legislation to facilitate the setting up of CDC schemes as soon as parliamentary time allows.  The current consultation runs until 16 January 2019.

Government pledges support for pensions dashboard

The main Budget document published on 29 October 2019 says that the Government is taking steps to support the launch of the Pensions Dashboard, a tool to allow individuals to view all their pension pots and their state pension in one place.  It says that the DWP will consult later this year on the detailed design for the Pensions Dashboard.  Since the Budget there has been a change of minister for work and pensions, but the incoming minister, Amber Rudd, has been reported as confirming her support for the Pensions Dashboard.

Budget announcement re consultation on pensions charge cap  

In the Budget on 29 October 2019, it was announced that the DWP would consult in 2019 on “the function of the pensions charge cap to ensure that it does not unduly restrict the use of performance fees within default pension schemes, while maintaining member protections”.

"Patient capital" Budget announcements

It was announced in the October 2019 Budget that the FCA will publish a discussion paper by the end of 2018 to explore how effectively the UK's existing fund regime enables investment in "patient capital" (long term capital where the investor is willing to forego an immediate return in anticipation of more substantial returns at a later date).  The FCA will consult on updating the "permitted links" framework to allow unit-linked funds to invest in an appropriate range of patient capital assets.  The FCA's "permitted links" rules restrict the types of asset by reference to which the value of units in financial products offered by insurance companies can be determined.

Government to allow civil partnerships between men and women

On 2 October 2018, the government announced it will change the law "as swiftly as possible" to allow civil partnerships between men and women.  Currently, UK law only allows civil partnerships between same sex couples.  It is unlikely that this change will have a significant impact for pension schemes, but once further details are known, scheme trustees should check that references to civil partnerships in scheme documentation and member literature still work as intended.

Government response to consultation on pensions cold calling ban

On 29 October 2018, the Government published its response to its consultation on banning pensions cold calling, ie unsolicited direct marketing calls relating to pensions products and services.  The consultation response includes the wording of regulations to ban cold calling which the Government intends to bring into force as soon as possible.