Our local government pension scheme (LGPS) experts, in the first of a series of alerts, look at what is covered in the consultation and the pooling criteria in order to help focus responses and actions between now and February 2016.
At the end of November, the Department for Communities and Local Government (DCLG) published a number of documents relating to the reform of LGPS investment.
Although reform of LGPS investment started early in 2014, the pace has now ramped up. The Government expects authorities to develop proposals for no more than six pools, each with at least £25 billion of assets and able to invest in infrastructure and drive local growth (the so called "six British Wealth Funds").
Administering authorities need to consider responding to the latest consultation, as well as submitting their initial proposals on the pooling of their investments, all of which has to be done by 19 February 2016.
The LGPS community appears to be engaged but there is a lot of work to do.
Replacement of the 2009 Investment Regulations
DCLG is consulting on new investment regulations to come into force on 1 April 2016.
There are two elements to the regulations, the first reduces the restrictions on administering authorities' investments and the second, as a safeguard, introduces a new Secretary of State power to intervene in the investment function of an administering authority.
To find out more, you can read the consultation document.
Investment Reform Criteria and Guidance
Also published on the same day were the LGPS Investment and Reform Criteria and Guidance (the Guidance).
As set out above, the Government expects authorities to develop proposals for no more than six pools, each with at least £25 billion of assets and able to invest in infrastructure and drive local growth. It anticipates that the new super funds will benefit from reduced costs through economies of scale.
The Government is inviting local authorities to determine how best to pool their assets and with whom to work, and has prepared criteria against which proposals for pooling will be assessed. DCLG will be taking a good hard look at those authorities who do not pool their assets.
Deregulation
Deregulation and simplification of the regulatory framework for scheme investments is, in our view, welcome (and, for many authorities, long-awaited) and moves the LGPS into line with the approach taken by private sector trustees.
The Government proposes removing the existing schedule of limitations on investments. Instead authorities are expected to take a prudent approach, demonstrate that they have given consideration to the suitability of different types of investment, have ensured an appropriately diverse portfolio of assets combined with an appropriate approach to managing risk. Their approach is to be documented in a new Investment Strategy Statement which replaces the Statement of Investment Principles (SIP).
The first Investment Strategy Statement must be published on 1 October 2016, being six months after the regulations are intended to come into force. Transitional provisions permit the existing SIP to continue to have effect until the new Investment Strategy Statement is published.
Specifically, the draft regulations now allow administering authorities to invest in Treasury-approved collective investment schemes.
While appearing to 'give' on the one hand, the Government is also careful, on the other, to induce certain behaviours; firstly through its "invitation" that requires authorities to submit proposals to pool investments and secondly, by permitting the Secretary of State the power to intervene in certain circumstances.
Proposals to pool investments
Authorities are required to submit proposals which the Government will assess against the criteria set out in the Guidance. Initial proposals can be individual or joint with other authorities and should include a commitment to pool and a description of progress towards formalising arrangements with other authorities.
The Government's presumption is that all investments should be made through the pool, but it is recognised that there may be a "limited number of existing investments that might be less suitable to pooled arrangements". Authorities may therefore explore whether to retain a proportion of existing investments outside of the pool, but the exemptions are required to be minimal and the rationale and clear value for money must be expressly set out in the pooling proposal. There is a similar exception made for existing directly held property.
Four criteria are set out in the Guidance, as well as further clarification of what the Government expects authorities will need to consider in order to address each specific one.
In headline terms, the four criteria are:
- Asset pools that achieve benefits of scale
- Strong governance and decision making
- Reduced costs and excellent value for money
- An improved capacity and capability to invest in infrastructure
The work required to address each criterion is significant, as is the level of knowledge and understanding of the structure and operation of the pool, particularly in relation to governance and value for money. Authorities will therefore be well advised to submit joint proposals where possible and to ensure that external advisers assist with the provision of information to address the specific requirements.
To address the Government's desire to increase investment in infrastructure, a separate specific criterion has been set, focusing on investment in infrastructure. Although it would be possible for an authority to comply with the criteria by stating its policy for a zero allocation to infrastructure, the requirement to explain how they might obtain or develop capability to invest and ambitions going forward show the Government's strong desire to increase investments in this area.
See the four criteria and supporting Guidance here.
To assist in the process of pooling, DCLG have published PwC's technical analysis of several different types of collective investment vehicles and their tax arrangements to help authorities develop proposals quickly. While this document is a very useful starting point, it does also demonstrate the complexities involved, the project management skills required on set up and the need for professional advice.
Secretary of State intervention
Draft regulations will permit the Secretary of State to intervene if he is satisfied that the authority is failing "to have regard to guidance issued under regulation 7(1) {Investment Strategy Statement}", which essentially means failing to comply with the Guidance document.
The process is relatively straightforward and the power under the regulations does appear to be limited to the extent to which the authority has regard to the Guidance. However, the evidence the Secretary of State may consider in deciding when to intervene is not fully prescribed and the consultation states that it could include evidence that an administering authority is carrying out another pension-related function poorly (suggesting, perhaps, that intervention may not be limited to investment decisions only).
Where a direction is issued, the Secretary of State could require the authority to make changes to its investment strategy or to invest assets in a specified way or even to exercise the investment functions of the authority or require compliance with the instructions of a nominee. This takes the Secretary of State's powers wider than the Pensions Regulator's powers in this respect in relation to trust-based occupational pension schemes.
What does the timetable look like?
The timeframe to achieve pooling is demanding:
19 February 2016
Deadline for submitting:
- responses to consultation on new investment regulations; and
- initial proposals on approach to meeting pooling criteria and guidance. These can be individual or joint proposals.
1 April 2016
Date that the new investment regulations are expected to come into force.
15 July 2016
Deadline for submitting refined and completed submissions. There should be a joint proposal from participating authorities in a pool and an individual return from each authority.
1 October 2016
Date by which funds must publish their first statement of investment strategy (following consultation with appropriate persons).
April 2018
Date that transfer of liquid assets to the pools is intended to begin.
And somewhere between July and October 2016 is an unspecified date by which the Government will have assessed a fund's final proposals against the four Criteria and issued a report setting out the extent to which these criteria have been met (or not adequately addressed, of course).
What does all this mean in the short term?
At both pool and authority levels, proposals need to be submitted in a timely fashion to the Government.
Participating authorities need to be talking to one another and setting out detailed arrangements of exactly what is proposed (looking at everything from the top level structure going forward, through to governance and ultimately the timetable for implementation). Individual authorities need to detail their commitment to, and expectations of, the pool(s) in which they will be participating. Profiles of costs and savings, transition arrangements and rationales for keeping any assets outside of the pool(s) will all need to be firmly established.
And while all this is going on, authorities must continue to manage existing investment strategy and manager appointments and keep both under regular review.
Does the pool look inviting?
Opinion on the efficacy of the Government's proposals varies hugely. On the one hand, there's already an existing drive on the part of some authorities to pool in a bid to save costs and seek efficiencies and, indeed, the Government's Guidance encourages authorities to learn from those who have already begun to develop their own collective investment vehicles. On the other, there's a view that reconfiguring the funds into six super funds is not enough to "save" the LGPS from alleged long term unsustainability.
Whatever the right answer might be, at the current time, authorities have no choice but to comply and start the ball rolling towards pooling (or even greater pooling). In the absence of well thought out plans to pool (or indeed a total failure to consider pooling at all), authorities face the threat of intervention.
For more information please contact Paul Carberry.