UK: Pensions Ready Reckoner - February 2015

Last Updated: 18 February 2015
Article by Clive Weber

A quick overview of some key pension developments in Parliament and from the FCA, TPR, the Courts and the Pensions Ombudsman.

Topic Developments in outline
DC flexibility from April 2015 for those aged 55 and over The Taxation of Pensions Act amends the Finance Act 2004 to introduce DC flexibility from age 55 onwards from 6 April 2015. The practical effect will depend on scheme rules and trustee decisions. Accessing DC funds flexibly is by way of drawdown from the member's "flexi-access drawdown fund", or by receiving a new type of authorised lump sum namely an "uncrystallised funds pension lump sum" ("UFPLS"). Activating flexi-access or UFPLS triggers the new limited annual allowance of £10,000 for future money purchase contributions.

Member communications should be suitably caveated as the Act merely sets the tax parameters – individuals' actual benefits, including any options for DC flexibilities, depend on what trustees allow.

The Act also introduces more favourable tax treatment on death for individuals' DC pension pots, announced by the Government on 29 September 2014. Onerous HMRC reporting obligations on trustees, individuals and DC providers operating the new DC flexibilities are also prescribed.

Note that the "lifetime allowance" tax rules continue notwithstanding the new DC flexibilities.
Framework for new DC flexibilities The Pension Schemes Bill is expected to receive Royal Assent this month. This will be followed by many related Regulations, all of which will need to be finalised and issued prior to 6 April 2015. A very tight timetable and there will be a significant impact on many types of member communications including booklets, newsletters, retirement options and benefit statements. Legal review to ensure compliance with disclosure regulations is essential. Matters covered by the Bill and its Regulations include:

(1) The framework for delivery of the "guidance guarantee" by the Treasury-designated delivery partners (TPAS and CPAS) for DC members considering using the new DC flexibilities; Treasury powers to monitor the delivery partners; and provisions making it a criminal offence to pretend to be a designated delivery partner.

(2) The requirement on trustees to check that DB members have obtained FCA authorised independent advice before transferring to a DC arrangement or converting DB rights to DC; advising on such transfers is to be an FCA-regulated activity.

(3) Amendments to the statutory transfer legislation, including DC members' new statutory right to transfer at any point up to their retirement. DB members' statutory right to transfer will, as now, cease 1 year before their normal pension date and so DB transfers within a year of NPD will continue to be non-statutory and dependent on scheme rules.

(4) detailed amendments to the Disclosure Regulations, and new additional Regulations, so that members are properly informed about items (1), (2) and (3) and can implement their choices.
DFinancial Conduct Authority – ancillary changes to the "DC flexibility" changes from April 2015 (1) the FCA's consultation on "Retirement reforms and the Guidance Guarantee" was issued in July 2014 and closed on 22 September 2014. This consultation related to the FCA setting standards for guidance to DC members at the point of retirement; the standards themselves will be finalised shortly. Surprisingly, DC members are not required to supply any information in advance of their guidance session. (The Government has announced that the pensions guidance service for DC individuals will be called "Pensions Wise" – whether this is a wise choice of name remains to be seen!)

(2) "Rules for independent governance committees" for DC workplace pension arrangements were made by the FCA on 4 February 2015.

These changes will provide a comprehensive and heightened regulatory regime for DC contract-based arrangements. The Government announced on 27 January 2015 that pension providers must establish a "second line of defence" in pensions guidance cases: asking the customer about key aspects of their circumstances and, dependent on their answers, giving health warnings including a reminder about the Pensions Wise service.
DWP – DC trust based schemes The DWP will implement similar changes to legislation governing DC trust based schemes to ensure DC trustees also operate a "second line of defence" in relation to DC members making choices about their benefits.

The DWP has on 4 February 2015 issued draft Regulations covering DC schemes' new obligations to elect trustee chairs and to produce annual DC scheme governance statements. TPR will issue an overview of these new requirements later this month.
Pooling of risk – Collective DC arrangements Provisions are also included in the Pension Schemes Bill to enable members' DC benefits to be pooled and hence investment and longevity risks shared. These "collective benefits" arrangements will be available under both shared risk and defined contribution schemes. However tax changes will also be needed and these have yet to appear. Collectives are unlikely to be operational until April 2016 at the earliest.
Defined Ambition
(risk sharing schemes)
New "risk sharing" schemes occupy the middle ground between fully promising members' benefits as with a DB scheme, or making no promise about the level of pension benefits as in a DC scheme. The Pension Schemes Bill categorises pension schemes according to the level of the employer's promise relating to benefits in the accumulation (before retirement) phase. The categories are "defined benefit schemes" OR "shared risk schemes" (defined ambition) OR "defined contribution schemes". The legislative framework for shared risk schemes will be lighter than for defined benefit schemes. The concept of schemes providing some benefits promise but not a full promise has been around for a long time; shared risk schemes extend and build on this concept.
and more minor Parliamentary matters:
Same sex marriages As required under the Marriage (Same Sex Couples) Act 2013, the Government's "Review of Survivor Benefits in Occupational Pension Schemes" was published in July 2014. The Government is still considering its position but looks unlikely to extend the level of survivor pensions required under present legislation unless forced to do so by Court decisions e.g. the forthcoming appeal in Innospec v Walker, see "From the Courts" below.
GMP sex equalisation Government remains of the view that GMP sex equalisation is required. However, the draft Regulations published in January 2012 have still not been made. The Government continues to search for a simplified process for GMP sex equalisation.
and not forgetting:
Introduction of single tier state pension and abolition of DB contracting-out from April 2016 These provisions are in the Pensions Act 2014 which received Royal Assent on 7 May 2014. Employers' overriding statutory power to amend future service accrual / member contributions to help offset the cost of increased National Insurance Contributions is contained in (draft) Regulations expected to come into force before the end of this Parliament on 31 March 2015. Regulations will also be made later in 2015 automatically amending references to certain terms which will no longer apply from April 2016 e.g. "basic state pension" which is sometimes used in scheme rules as a deductible when calculating pensionable earnings. Generally on the April 2016 contracting–out changes, please see our July 2014 Bulletin.
And also not forgetting:
Reforming the law on trustees' investment duties Following the Law Commission's consultation (October 2013) on "fiduciary duty" in the investment context and the role of environmental, ethical and social factors, the Law Commission issued their final report in July 1014.
Corporate directors Corporate directorships (often used by independent trustees) will probably still be allowed: see the Government's Consultation on Corporate Transparency issued in November 2014.


Topic Developments
Codes and Guidance (1) TPR's new Code of Practice on the funding of DB schemes came into force in July 2014. It reflects TPR's additional statutory objective under Pensions Act 2014 "to minimise any adverse impact on the sustainable growth of an employer".

(2) In addition, on 10 June 2014 TPR published ancillary papers relating to its view of DB scheme funding, including its annual statement on funding, its strategy and policy on enforcement and its segmentation of employer covenants.

(3) TPR will be issuing numerous updated Codes of Practice and Guidance on the legislative changes from April 2015 – please see above under "Parliament".


Topic Developments
Employer's duty of good faith
IBM v Dalgleish (April 2014)
The April 2014 High Court decision – see our May 2014 Bulletin – continues to play out. Judgment following the "remedies" hearing this July concerning the extent of remedies for the Employer's breaches of good faith is expected fairly soon.
Arcadia Group Ltd v Arcadia Group Pension Trust (31 July 2014)
The High Court decided that:

(1) The particular definition of "Index of Retail Prices" in the Rules did not preclude the choice of a different index (e.g. CPI);

(2) Following the High Court's 2012 decision in "Qinetiq", switching index for future pension increases and revaluation was not contrary to the "past service" protections under Section 67 Pensions Act 1995; and

(3) The Rules being silent as to who chooses the applicable index, the choice was in the hands of the Employer and the Trustee acting jointly.

See also the January 2015 report on "Consumer Prices" commissioned by the UK Statistics Authority.
ATP Pension Services AIS (March 2014,Court of Justice of the European Union)
We reported on "ATP" in our May Bulletin. At the end of May HMRC issued a further Brief (22/14) stating that HMRC is now generally reviewing the VAT treatment of pension scheme administration and fund management services and that HMRC will issue further guidance in the Autumn. On 25 November 2014 HMRC issued its views on VAT recovery in DB and DC schemes. Far from providing clarity, many uncertainties remain. There are likely to be further developments.
Horton v Henry (17 December 2014)
The High Court decided that the trustee in bankruptcy could not oblige the bankrupt individual to exercise the option to access his pension rights. An appeal has been lodged, due for hearing by July 2015. See our separate article in this Bulletin. This is an important topic bearing in mind the scope of DC flexibility from April 2015.
Section 75 debts
Singer and Friedlander (December 2014)
The High Court decided the trustees could assign their right to a section 75 debt for a single lump sum in place of a stream of section 75 payments otherwise due by the end of 2017.
Multi-employer schemes: deficit recovery plans
Merchant Navy Ratings Pension Fund v Stena Line and others
This case was heard by the High Court in November 2014 and judgment is expected soon on how the scheme deficit should be properly apportioned between the various employers. Widely anticipated is commentary from the court as to the extent of trustees' duties to take sponsoring employers' interests into account when exercising their functions.
Loss of pension rights
Griffin v Plymouth Hospitals NHS Trust (26 September 2009)

Commission and overtime:
Lock v British Gas (European Court, May 2014)
Bear & Others (Employment Appeal Tribunal, November 2014)
The Court of Appeal have decided that the Employment Tribunal's approach to calculating compensation for loss of pension rights was incorrect. The Court indicated that the 2003 guidelines were substantially out of date in view of pension developments since then.

In the employment law context, variable pay needs to be included when calculating an employee's entitlement to payment for the purposes of "paid annual leave". Schemes which provide for more than basic annual pay to be pensionable may need to take these recent decisions into account.
Forthcoming decisions:

Briggs v Gleeds

Innospec v Walker



Incentive Exercises Monitoring Board

Information Commissioner

The appeal is due to be heard by July 2015 against the High Court decision that some 20 deeds were incorrectly executed and were thereby legally ineffective.

The appeal against the Employment Appeal Tribunal's decision is due to be heard in July 2015. The EAT had previously upheld the statutory exclusion of pre-5 December 2005 service in calculating the pension due to the survivor of a registered civil partnership (the exclusion is in Regulation 18, Schedule 9 Equality Act 2010).

This has been a busy period. There have been a wide range of decisions including on pension liberation, options chosen because of inaccurate information and whether trustees are under a duty to alert employers to future section 75 debts. The cases on inaccurate or misleading information are particularly relevant given the great importance of properly communicating the April 2015 changes and the DB to DC transfer facility.

The Board (which is non-statutory) announced in December 2014 that one off trivial commutation exercises are within the Code, in contrast to "business as usual" trivial commutation exercises which are not.

Has issued an updated Guide to the Data Protection Act.

No more for now ! Any queries welcome.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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