Trustee Quarterly Update - June 2020

Pensions Regulator Covid-19 guidance

The evolving situation in relation to Covid-19 has given rise to numerous pensions-related developments over the past quarter.  We look in more detail below at the various Covid-19-related guidance issued by the Pensions Regulator and at other developments specifically related to Covid-19.

Key areas of focus for trustees in response to COVID-19 should include:

• potential impact on employer contributions and response to any request to defer/suspend contributions;
• liaising with scheme administrator regarding business continuity plans and priorities;
• impact on investment strategy;
• appropriate member communications; and
• how employment-related measures in relation to active members (eg furloughing or reduced hours) interact with the scheme rules.

DB schemes: funding and investment

On 20 March, the Regulator published its Guidance for DB scheme trustees whose sponsoring employers are in corporate distress indicating that contributions due under a scheme's schedule of contributions could be deferred where the employer was in distress as a result of the Covid epidemic.  This was followed on 27 March by its DB scheme funding and investment: COVID-19 guidance for trustees which covers scheme employers' requests for easements, schemes completing their valuations, scheme investments and transfer values.  The guidance says that during the three month period following the issue of the guidance, the Regulator will not take action against trustees for breaches of the disclosure requirements associated with the cash equivalent transfer value process, as it acknowledges trustees might need to review CETV terms and/or assess the administrative impact of any increase in demand for CETV quotes.  The guidance says that easements announced in the guidance will be maintained until 30 June 2020, but that the Regulator will keep this date under review.

DC schemes: scheme management and investment

For DC schemes the Regulator issued DC scheme management and investment: COVID-19 guidance for trustees. This guidance was also issued on 27 March and was then updated on 21 May.  The guidance covers communicating with members about investments and also deals with the potential for an arrangement to become a default arrangement as a matter of law in cases where contributions are redirected as a result of members' self-selected property funds having closed.  For DC schemes, the guidance makes clear that processing transfer values is a "core financial transaction" which the Regulator expects trustees to prioritise.

Reporting duties and enforcement activity

On 9 April the Regulator published COVID-19: an update on reporting duties and enforcement activity announcing that it had decided to adopt a more flexible approach to reporting breaches of the law due to the Covid-19 situation.  In general, if a breach will be rectified within less than three months and does not have a negative impact on savers, there is no need to report to the Regulator, but trustees should keep records of any decisions made and actions taken.  However, for some key areas the Regulator has issued more specific guidance and the general principle does not apply, eg in relation to chair's statements and reporting notifiable events.  Trustees who are aware that they have committed a breach should therefore check whether that type of breach is covered by specific guidance or the general principle.  To the extent that easements apply, they will remain at least until 30 June 2020, but that date will be kept under review.  

The Regulator has announced that it will not take regulatory action in respect of a failure to comply with the statutory consultation requirements where an employer has furloughed staff under the Government's Job Retention Scheme, is proposing to reduce employer contributions for furloughed staff only with the reduction applicable only during the furlough period, and has written to affected staff and their representatives describing the intended change.  This easement, set out in the Regulator's Automatic enrolment and DC pension contributions: COVID-19 guidance for employers will apply initially until 30 June 2020, but this date will be kept under review.

Communicating with members

The Regulator has issued guidance for trustees on Communicating to members during COVID-19.  This includes a template letter produced jointly by the Pensions Regulator, the FCA and the Money & Pensions Service which the Regulator has asked all trustees of DB schemes to send to any members requesting a CETV quote.

Job Retention Scheme

At the end of March, the Government announced details of its Job Retention Scheme (JRS) which allows employers to furlough their workers on 80% of pay up to a maximum of £2500 per month.  Employers can claim pension contributions, but only at the minimum rate needed to satisfy pension auto-enrolment obligations.  On 20 May the rules of the JRS were amended  to confirm that work undertaken by an employee for the sole purpose of fulfilling his/her duties as a trustee of an occupational pension scheme will not cause a breach of the requirement not to work while on furlough.  This exemption does not apply to work for a professional independent trustee business.

On 29 May the Chancellor announced the following changes to the JRS:

• from 1 July, businesses will be able to bring furloughed employees back part-time.  Employers will be responsible for paying their employees' wages while they are in work;
• from August 2020, employers will be responsible for paying employer National Insurance contributions (NICs) and pension contributions;
• from September, the government will pay 70% of wages (subject to the cap).  Employers will (in addition to paying employer NICs and pension contributions) be responsible for paying 10% of wages to make up the 80% total (subject to the £2500 cap); and
• in October the government will pay 60% of wages (subject to the cap).  Employers will (in addition to paying employer NICs and pension contributions) be responsible for paying 20% of wages to make up the 80% total (subject to the £2500 cap).

The JRS is due to close at the end of October.

Pensions Ombudsman service: impact of Covid-19

In a statement on its website, the Pensions Ombudsman's office says that due to all its staff working remotely, it is currently only able to accept online applications and e-mail enquiries and cannot accept post.  The statement also warns that it may take the Ombudsman longer than usual to deal with complaints and enquiries.

PPF statement re impact of Covid-19 on levy payers

The PPF has published a statement to reassure levy payers that Covid-19 will have a minimal impact on the amount of levy the PPF expects to charge this autumn because the 2020/21 levy will be based on rules fixed before the Covid-19 pandemic and information that was largely collected before the economic impact of Covid-19 became significant.  With regard to levy invoices in 2021/22 and beyond, the PPF points out that any increase to the overall amount it collects is limited to a maximum of 25% of the previous year's figure.  The PPF will consult on its plans later this year.

Emergency volunteering leave

The Coronavirus Act 2020 creates a new form of statutory unpaid leave, namely emergency volunteering leave, and the legislation provides protection for pension rights during such leave.

PASA DB Transfers Code of Good Practice: consultation closing date delayed

In our last Update we reported that the Pensions Administration Standards Association (PASA) had launched a consultation on its draft Defined Benefit Transfers Code of Good Practice.  Due to Covid-19, PASA has moved the consultation response deadline from 30 April 2020 to 30 September 2020.  PASA plans to release the final code by the end of the year.

Protected pension age maintained for workers returning to work in relation to Covid-19 

HMRC's Pension schemes newsletter 119 refers to a written ministerial statement made by the Economic Secretary to the Treasury regarding the government's intention to suspend tax rules which could otherwise result in loss of "protected pension age" and thus penal tax charges where a public sector worker returns to support the Government's response to Covid-19.  Prior to A-day, the pensions tax regime generally allowed members to retire from age 50. Under transitional provisions, some individuals who had an existing right under their scheme rules to retire before age 55 were able to retain that "protected pension age", but the legislation provides that protected pension age is lost if an individual is re-employed by the scheme's sponsoring employer or a "connected" employer.  In accordance with the ministerial statement, HMRC's newsletter says that it will accept that the individual satisfies the conditions for re-employment if the nature of the employment is to undertake work in relation to the Covid-19 outbreak.

Supreme Court judgment addresses non-financial investment factors

In a majority judgment in the case of R (Palestine Solidarity Campaign Ltd) v Secretary of State for Housing, Communities and Local Government, the Supreme Court has indicated that it endorses the views of the Law Commission regarding the extent to which scheme trustees may take non-financial factors into account in their investment decisions.

The key issue in the case related to some guidance which the Secretary of State had issued to administering authorities of Local Government Pension Scheme funds concerning the exercise of their investment powers.  Part of the guidance said that administering authorities should not use pension policies to pursue boycotts, divestment and sanctions against foreign nations and UK defence industries, other than where formal legal sanctions, embargoes and restrictions had been put in place by the government.  Overturning a Court of Appeal ruling, the Supreme Court (by majority) held that the Secretary of State had exceeded his powers in issuing this section of the guidance.  

The main issue at stake in this case is likely to be of minimal relevance to most scheme trustees.  However, the wider significance of the case is the Supreme Court's apparent endorsement of the views expressed by the Law Commission in a report in 2014 regarding the extent to which scheme trustees may take non-financial factors into account in making investment decisions.  The Law Commission had concluded that in general, the law allows non-financial factors to be taken into account if two tests are met, namely:

1. trustees have good reason to think that scheme members would share the concern; and
2. the decision does not involve a risk of significant financial detriment to the fund.

One of the three judges who gave the majority judgment endorsed the Law Commission's view of the law expressly, saying, "There appears now to be general acceptance that the criteria proposed by the Law Commission are lawful and appropriate. I agree."  Unfortunately, the judgment misquotes the Law Commission report, referring to the test for taking non-financial factors into account as being "provided that doing so would not involve significant risk of financial detriment to the scheme" (emphasis added) instead of a risk of significant financial detriment.  Nevertheless, it appears clear from the context that the judge intended to endorse the Law Commission view.  The other two judges giving the majority judgment refer in detail to the Law Commission view without suggesting it is incorrect.  (The dissenting judges disagreed with the majority on other grounds and did not suggest that they disagreed with the Law Commission's views on taking non-financial factors into account.)

Our thoughts

This case did not directly involve an argument over whether the Law Commission report correctly stated the law on taking non-financial factors into account in relation to investments.  Nevertheless, the circumstances of the case did involve the Supreme Court looking at the Law Commission report.  One judge expressly endorsed the Law Commission's views.  None of the other judges suggested that they disagreed.  We think this strongly indicates that, were the matter to be directly litigated, the Supreme Court would endorse the Law Commission's views on this issue.

Upper Tribunal rules on unauthorised payments tax regime

In the case of HMRC v Bella Figura Limited, the Upper Tribunal has ruled on the law around tax charges for unauthorised payments.  The case concerned a loan made by a pension scheme to a company connected with the scheme employer.  The director of the scheme employer had intended the loan to be an authorised employer loan and had relied on a firm of pensions administrators to draft the loan documentation for him, but the loan was not secured by a registered charge, as was required in order for it to qualify as authorised.  The loan therefore gave rise to an unauthorised payment, in relation to which HMRC sought to impose three separate tax charges: an unauthorised payments charge, an unauthorised payments surcharge, and a scheme sanction charge.  For more information, click here.

Scheme rule did not allow switch from RPI to CPI

In the case of Ove Arup v Trustees of Arup UK Pension Scheme, the High Court has ruled that the wording of a pension scheme's rules did not allow the Trustees to switch to basing pension increases on CPI or CPIH instead of RPI.  The scheme's rules required pension increases to be based on the "Index", defined as RPI, but subject to the following qualification, “If the composition of the Index changes or the Index is replaced by another similar index, the Trustees, after obtaining the Actuary's advice, may make such adjustments to any calculations using the Index (or any replacement index) as they consider to be fair and reasonable”.

The judge held that a "replacement" within the meaning of the rules only occurred if RPI was actually discontinued by the ONS, not where there was a "functional" replacement in the sense of another index such as CPI being used in place of RPI for some purposes whilst RPI continued to be published.  He then considered the meaning of the reference to the composition of the Index changing.  The judge noted that RPI and similar indices are not "static constructs".  They evolve over time in relation to, for example, the content of the "basket of goods" on which RPI is based and the weighting given to them.  The employer had sought a ruling on whether three specific changes to RPI amounted to a change in composition of the Index which would allow the Trustees to make adjustments to calculations using the Index.  The judge held that each adoption of new scheme rules by the Trustees effectively "reset the clock", so that once the Trustees had adopted new rules in April 2013, they could not then alter calculations based on changes to the composition of the Index before that date. 

There had been a change in 2017 in the way housing cost data were incorporated in RPI which the Trustees had conceded was a change in the composition of RPI which did in principle give the Trustees the power to make adjustments.  The judge held that the adjustment which the Trustees had the power to make had to be logically related to the effects of the change in the composition of the Index.  However, the adjustment which the employer was seeking to make was not of that nature.  It was not suggesting that a change to using CPI or CPIH would restore the way housing cost data were previously included in RPI.  Rather the employer was simply wishing to use the change to RPI as "a peg on which to hang a decision to replicate movements in CPI or CPIH instead of RPI".  The judge held that the rules did not allow this.

High Court upholds Pensions Ombudsman decision in RPI/CPI case

In the case of Carr v Thales Pension Trustees Limited, the High Court has dismissed an appeal against a Pensions Ombudsman determination in which the Ombudsman had held that a scheme's pension increase rule required pension increases to be based on RPI rather than CPI.  The rule in question read:

"[1]  the percentage increase in the retail prices index over the year ending 30 September in the calendar year prior to that in which the increase is due to take place subject to a maximum of 5 per cent [2] as specified by order under Section 2 of Schedule 3 of the Pension Schemes Act."

At the time the rule was drafted, the orders under the specified legislation had been based on RPI, but following the government's decision in 2010 to switch to basing revaluation orders on CPI, limbs [1] and [2] contradicted each other.  

The court ruled that the Ombudsman had come to the right conclusion in holding that the rule required pension increases to be based on RPI.  The judge held that the "natural and ordinary reading" of the rule was that "limb 1", which referred to increasing pensions in line with RPI, was to be given primacy. 

Our thoughts 

Because the question of whether a scheme may switch to basing pension increases on CPI rather than RPI is dependent on the exact wording of a scheme's rules, a number of cases on this issue have come before the courts.  The courts have been wary of interpreting rules to allow a switch in circumstances where it is not clear that this was intended by the original draftsman.  This case and the Ove Arup case above are no exception.

Annual and lifetime allowance changes

In the Budget on 11 March, it was announced that from tax year 2020/21, the "adjusted income" figure above which the individual's annual allowance is subject to a tapering reduction is increased from £150,000 to £240,000.  The "threshold income" figure (below which no account is taken of the value of employer pension contributions when working out whether someone is subject to the taper) rises from £110,000 to £200,000.

Previously, a person subject to the maximum annual allowance taper would have an annual allowance of £10,000.  From tax year 2020/21, the annual allowance is reduced to £4000 for someone who is subject to the maximum taper.

The lifetime allowance was increased in line with CPI for tax year 2020/21, giving a lifetime allowance of £1,073,100.

Investment-related reporting requirements in force from 1 October 2020

As flagged in our previous Update, 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.

Corporate Insolvency and Governance Bill brings major changes to insolvency regime

The Corporate Insolvency and Governance Bill is due to bring in some major changes to the insolvency regime which are potentially relevant to scheme trustees seeking to enforce their rights against sponsoring employers.  Two key changes are:

• the ability for a struggling company to apply for a 20 business day moratorium against creditors enforcing debts; and
• a new type of scheme of arrangement ("restructuring plan") which the court will have the power to sanction despite it not having been approved by 75% in value of a class of creditors.

Unless they have been granted security, trustees of defined benefit schemes in deficit are unsecured creditors of the sponsoring employer.  The pre-insolvency moratorium could make it even more difficult for scheme trustees to recover contributions from struggling companies.  The new restructuring process may result in the PPF having less say than would have been the case for a company voluntary arrangement.  Given the wide discretion given to the courts regarding whether to sanction a restructuring plan, a key issue will be the courts' approach to pension scheme creditors in practice. 

For more detail on the Bill's provisions, click here.

Parental bereavement leave

A new right for parents to take up to two weeks' statutory bereavement leave following the death of a child under 18 or a stillbirth came into force on 6 April 2020 in relation to deaths or stillbirths occurring on or after that date.  A person taking a period of paid statutory bereavement leave has the right to be treated for pension scheme purposes as if he or she were working normally, but can only be required to make pension contributions based on pay actually received.  

Consultation on DB funding code of practice

On 3 March the Pensions Regulator published a consultation on its defined benefit funding code of practice. The current consultation is the first of a two part consultation and considers the principles of the Regulator's approach. A second consultation is due to focus on the draft code itself.

Two compliance routes: Fast Track and Bespoke

The consultation proposes that schemes will be able to follow one of two routes, referred to as "Fast Track" and "Bespoke". Schemes following the Fast Track route can expect minimal regulatory involvement.  For more information, click here.

Annual funding statement

The Pensions Regulator published its annual funding statement on 30 April 2020.  The statement is particularly relevant to schemes with valuation dates between 22 September 2019 and 21 September 2020.  As last year, the statement contains a table setting out the Regulator's expectations according to employer covenant and scheme maturity. The Regulator says it is important for trustees and employers to work together to manage the immediate impact of Covid-19, but they should also make sure they retain a focus on long term planning and risk management.  

The Regulator says that when preparing recovery plans, trustees should consider taking post-valuation experience into account.  This must be applied consistently, particularly when trustees are asked to take account of changes to employer affordability.  The Regulator says that it is reasonable to delay taking decisions about technical provisions assumptions until more clarity emerges, but that it expects schemes to proceed with as much preliminary valuation work as possible. 

The statement contains a warning that trustees who are requested to bring forward a valuation date should obtain legal and actuarial advice, and can be expected to be questioned by the Regulator on their reasons for the change.

In relation to recovery plans, the Regulator says that, where possible, these should incorporate incremental increases to contributions which track corporate health recovery, especially when the scheme has taken on additional funding risk while supporting the employer's recovery.  Where the employer is seeking a long recovery plan because of limited affordability, trustees should ensure the employer's affordability is not constrained by "covenant leakage", which includes dividend payments, cash pooling, group trading arrangements, and excessive executive remuneration.  The Regulator expects the frequency and intensity of covenant monitoring to be significantly increased until covenant visibility and strength is restored.

Schemes that have not already set long-term funding targets (LTFTs) are encouraged to do so, and to be prepared to evidence how shorter term funding and investment strategies align with the LTFT.

The Regulator expects trustees to review the employer covenant to understand the potential different outcomes of Brexit negotiations, including the possibility of leaving the UK's current trading agreement in December 2020 on World Trade Organisation terms.

Regulator granted new powers to obtain communications data

The Pensions Regulator is one of a number of public bodies to be granted new powers to obtain communications data for the purpose of preventing or detecting serious crime. The relevant powers are contained in the draft Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2020  which were laid before Parliament on 21 April 2020.

Member entitled to deferred pension despite lack of membership records

The Deputy Pensions Ombudsman (DPO) has ordered a pension scheme to provide a member with a deferred pension in respect of service from 1979 to 1986 in a case where there was an absence of records and the scheme disputed the member's claim that he was entitled to a deferred pension in excess of GMP (Mr Y PO-27002).

It was common ground that Mr Y had been employed by Royal Mail Group (RMG) between 1979 and 1986.  During that time he was twice convicted on charges brought against him by RMG.  He was fined for criminal damage which he caused to RMG property in 1985 and received a suspended prison sentence for theft in 1986.

Mr Y contacted the scheme administrators in April 2017 on several occasions to enquire about the benefits available to him from the Royal Mail Statutory Pension Scheme, membership of which had been mandatory at the time of Mr Y's employment.  The administrators initially told him they could not find any details of his benefits.  However, while undertaking a GMP reconciliation exercise, the administrator was informed by NICO that Mr Y was entitled to a GMP in respect of his seven years of service from 1979 to 1986.  The administrator subsequently created a GMP record showing that Mr Y was entitled to a GMP only in respect of the relevant period and informed him accordingly.  Mr Y disputed that he was only entitled to a GMP.

The scheme administrator tried to obtain Mr Y's employment details from Royal Mail Group (RMG), but was informed that RMG no longer held them because employment records were destroyed six years after an employee had left.

Mr Y brought a complaint to the Ombudsman regarding the Scheme's refusal to pay him a pension. The scheme's management noted that the Scheme's trust deed and rules permitted RMG to reduce a member's pension in excess of GMP to recoup a monetary loss it had suffered as a result of a member's criminal activities and suggested this was what had happened.  It said that the onus was on Mr Y to produce evidence of his benefit entitlement, but he had been unable to provide any such documents.

The DPO noted that the fact that the GMP record was missing indicated that the Scheme's records were not necessarily complete.  She said that the scheme administrator had not put forward any evidence to explain why the whole value in excess of the GMP would have been reduced to zero yet leaving a GMP liability which itself was not recorded.  She concluded that Mr Y was entitled to a full deferred pension, not just a GMP, and ordered the Scheme to provide this.

Our thoughts

This particularly "member friendly" decision illustrates the importance of good scheme record-keeping, and the fact that pensions disputes can arise in relation to events that happened decades earlier.  Legislation protects a member's GMP from being forfeited even when the law allows other benefits to be forfeited, so in the circumstances, there does appear to have been a plausible explanation for the member having only a GMP entitlement.  However, faced with inconclusive evidence and inadequate scheme records, the DPO found in favour of the member.

Managing pension schemes service: latest developments

HMRC's Managing pension schemes service newsletter published on 1 April 2020 outlines the latest developments in relation to HMRC's Managing pension schemes service.  From 1 April 2020, schemes registered through the service have been able to start to compile Accounting for Tax returns on the service for the quarter 1 April-30 June 2020.

The newsletter says that later in the year it will be possible for scheme administrators to view financial information through the service.  By mid-2021, HMRC plans to deliver event reporting through the service.  It plans to introduce the Pension Scheme Return on the service in time for the 2022/23 tax year.

Countdown Bulletin 53: final data cuts to be issued by end of July 2020

In its Countdown Bulletin 53 dealing with the end of contracting-out, HMRC has said that it plans to issue final data cuts by the end of July 2020 for schemes that engaged with the Scheme Reconciliation Service.

PLSA publishes template for chair's statements

The Pensions and Lifetime Savings Association (PLSA) has published a template to assist schemes with the requirement (applicable to schemes providing money purchase benefits) to produce a chair's statement.  The template has been produced following concerns raised by PLSA members regarding how some of the legislative requirements regarding the statement are being applied in practice.  (The Pensions Regulator is required to fine trustees who fail to comply with the statutory requirement to produce a chair's statement, and has issued a number of fines in cases where a statement has been produced which, in the Regulator's opinion, has not fully met all statutory requirements.)

The template has been produced in conjunction with a number of firms providing pensions advice and its production has been supported by the Pensions Regulator.  It is designed to be used in conjunction with the Regulator's guidance, and the PLSA says that schemes should continue to consult their own advisers as part of the process of producing a statement.

RPI consultation

As expected, at the Budget on 11 March, the Government published a consultation on reforming the Retail Prices Index methodology.  The consultation had been due to close on 22 April 2020, but the consultation period has been extended to 21 August 2020 in the light of the Covid-19 situation.

FCA delays implementation of DB transfer advice changes

In our September 2019 Update, we reported that the FCA was consulting on banning contingent charging for advice in relation to transfers from defined benefit schemes, ie the practice whereby an adviser charges more where a transfer goes ahead compared to what the adviser would have charged had the transfer not proceeded.  The FCA had planned to publish its final rules on this in the first quarter of 2020, but now plans to publish them in the second or third quarter of 2020.

Withdrawal of previously announced general levy increase

In our December 2019 Update, we reported on the DWP's consultation on options for increasing the general levy on pension schemes.  The general levy (not to be confused with the PPF levy) is used to fund the Pensions Ombudsman, the core activities of the Pensions Regulator and part of the activities of the Money and Pensions Service.  Following the consultation, the government had made regulations which were due to increase the general levy with effect from 1 April 2020.  However, in consequence of Covid-19 circumstances, the Government revoked the regulations so that levy rates did not increase.

Pensions Climate Risk Industry Group consultation on climate change guidance for trustees

The Pensions Climate Risk Industry Group is consulting on guidance for scheme trustees on assessing, managing and reporting climate-related risks in line with the Taskforce on Climate-Related Financial Disclosures (TCFD).

Part 1 of the guidance introduces climate risk as a financial risk to pension schemes, trustees’ legal requirements and the TCFD recommendations. Part 2 sets out a suggested approach for the integration and disclosure of climate risk within the typical governance and decision-making processes of pension trustee boards, including defining investment beliefs, setting investment strategy, manager selection, and monitoring.  Part 3 of the guide contains technical details on recommended scenario analysis and metrics that trustees may wish to consider using to record and report their findings.

The consultation closes on 2 July 2020.