Welcome to your weekly update from the A&O Shearman Pensions team, covering all the latest legal and regulatory developments in the world of workplace pensions.
Summary
High Court considers limitation periods for FSCS compensation on pension transfers.
Pensions dashboards: new guidance for direct connectors and updates to standards guidance.
High court: Limitation on pension transfer claim runs from transfer date
The High Court has rejected a judicial review challenge of the Financial Services Compensation Scheme's (FSCS) refusal, on limitation grounds, to pay compensation claims arising from pension transfers into a SIPP: R (Golding and others) v. Financial Services Compensation Scheme Ltd.
Section 27 of the Financial Services and Markets Act 2000 (FSMA) allows a person who enters into an agreement as a result of an unauthorized third party's activities to recover money transferred (section 27(2)(a)) and compensation for loss arising as a result of the transfer (section 27(2)(b)).
The claimants were advised by an unregulated adviser to transfer their existing pensions into a SIPP administered by Liberty SIPP during 2011 and 2012. The funds were moved into high-risk investments, which failed. Liberty SIPP went into administration in April 2020 and was unable to pay the members who had lost their funds. The FSCS paid compensation for the lost funds but not for the returns the original schemes would have earned. It later reconsidered this approach, following subsequent case law, but determined that the claim was beyond the six-year limitation, which ran from the date of transfer into the SIPP.
The claimants argued that section 27(2)(b), on compensation for loss, created a separate cause of action, which accrued only when they first suffered loss (meaning the limitation period began later). Mrs. Justice Hill disagreed. She held that section 27(2) creates a single cause of action, which accrued on the transfer date when the claimants had exchanged their more advantageous rights under their original pension schemes for different rights under the SIPP. She also found that even if there were separate causes of action, the outcome would have been the same, because the relevant loss (less advantageous rights) arose at the point of transfer.
While the decision relates to section 27 claims, it illustrates the need for careful analysis of the starting point and limitation period for each identified cause of action.
PDP: New and updated dashboards guidance
The Pensions Dashboards Programme (PDP) has published new guidance within its Connection hub for pension providers and schemes:
- Reporting standards production monitoring: this new guidance assists directly connecting organisations (DCOs) through the production monitoring phase, which ensures that DCOs can generate and record operational information and successfully report it to the Money and Pensions Service (MaPS).
The PDP has also made two updates to its guidance on Standards:
- Supplementary guidance on benefit illustrations: a new example has been added covering public service pensions affected by the McCloud Remedy.
- Transfer of pension providers or schemes: a minor technical update has been made.
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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