Ian Chapman-Curry
Legal Director
PSL legal director
Podcast
8
Episode five goes into more depth about The Pensions Regulator (TPR), discussing who has a duty to report breaches of the law to TPR and what sort of breach should be reported.
Certain people are required to report breaches of the law affecting pension schemes to The Pensions Regulator. Failure to report when required to do so is a civil offence. Reporters should ensure they have effective arrangements in place to enable them to meet their duty to report breaches of the law.
A legal duty to report falls on:
The duty to report breaches of the law arises when a duty which is:
has not been, or is not being, complied with.
When considering whether there has been a breach of law, reporters should bear in mind the duty for trustees to administer the scheme in accordance with the terms of its trust deed and rules and exercise their powers for the purpose for which they were given. Failure to do so would be a breach of trust law.
There are two points to consider when deciding whether or not to report a potential breach:
It is a legal requirement that breaches likely to be of material significance to The Pensions Regulator in carrying out any of its functions are reported. Points to consider are the cause, effect, wider implications and reaction to the breach. It is also important to note that reports should be made as soon as reasonably practicable in order to comply with the code.
Organisations should:
Reports must be submitted in writing and (wherever practicable) in the standard format available on The Pensions Regulator's website. Breaches can be reported individually or collectively.
One party's duty to report is not automatically discharged by another party reporting the breach. Once the reporter has made a disclosure to The Pensions Regulator, they will receive an acknowledgment.
This should be forwarded to the trustees or manager by the reporter who can then manage and distribute the original report to those they consider may be likely to come across the breach. An exception to this arrangement will apply in cases where there is a suspicion of dishonesty or other serious wrongdoing by the trustees or managers.
Failure to comply with the obligation to report breaches of the law without a reasonable excuse is a civil offence. The Pensions Regulator may consider imposing a fine or other civil penalty and, also make a complaint to the reporter's professional governing body (if applicable). In determining whether to impose a penalty, The Pensions Regulator will consider the following (this is a non-exhaustive list and further information can be found on the Regulator's website):
When The Pensions Regulator receives a report of a breach of law, it has discretion over whether to take action. The manner in which The Pensions Regulator will exercise its discretion is likely to depend on the nature of the breach, the circumstances in which it occurred and any other information available to the Regulator. The range of measures it can take include assisting trustees to achieve compliance, providing guidance, removing trustees from office, freezing the scheme and imposing fines where appropriate. (This is a non-exhaustive list and further information can be found on the Regulator's website.)
On 6 April 2015, changes to pensions legislation came into force that are directly relevant to this aspect of the Regulator's Code of Practice.
The Occupational Pension Schemes (Charges and Governance) Regulations 2015 apply to most occupational pension schemes that offer money purchase benefits (subject to various exceptions).
The new regulations introduce one exception to The Pensions Regulator's discretionary approach to taking action over reported breaches of the law described above. They introduce a number of new governance standards that trustees must report against in an annual statement signed by the chair of trustees. Trustees who do not produce this chair's statement will be fined between £500 and £2,000.
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