New Regulatory Powers effective from 1 October 2021

The provisions of the Pension Schemes Act 2021 creating new criminal offences and financial penalties come into force on 1 October 2021.

The existing anti-avoidance regime confers power on the Pensions Regulator to impose contribution notices on employers and connected / associated persons in prescribed circumstances.  These powers have been strengthened by the Act with the creation of new criminal offences which are punishable by financial penalty (up to £1 million) and / or imprisonment (for a term not exceeding seven years).

The offences include:

- failure to comply with a contribution notice

- avoidance of an employer debt

- conduct risking accrued scheme benefits

The financial penalty may also be imposed in circumstances where a person “knowingly or recklessly” provides false or misleading information to the Regulator and / or trustees.

The offences are committed by “persons” rather than “employers” or those who are “connected or associated” with employers, meaning the Regulator can cast the net more widely for the purposes of identifying those who may have committed an offence.  This has caused some alarm in the industry as trustees and professional advisers fall within the category of persons who could commit an offence. 

There is no clearance regime applicable in respect of the offences, meaning employers and trustees will need to carefully assess the impact of any proposals affecting the pension scheme (whether directly or indirectly).

From 1 October 2021, the Regulator will have the following two new grounds on which to impose a contribution notice:

- where the employer insolvency test is met

In summary, this requires an act or a deliberate failure to act which has the effect of reducing the amount of employer debt recoverable by an underfunded scheme.

- where the employer resources test is met

In summary, this requires an act or deliberate failure to act which has the effect of reducing the value of the resources of the employer and the reduction is material relative to the estimated value of the employer debt.

Sponsoring employers will need to consider these new tests (and the application of any statutory defences) in the context of corporate activity as they could bring it within the scope of the Regulator’s powers.  Code of Practice 12 (Contribution Notices: Circumstances in relation to the material detriment test) has been updated to include the new tests and new Code Related Guidance will come into force on 1 October 2021.  The Guidance provides illustrative examples of the types of transaction which are expected to meet the new tests as well as those that are not.  Transactions which result in the removal or reduction of support by the sponsoring employer, weaken the scheme’s creditor position, or otherwise involve payments to creditors/parties at the expense of the scheme, are potentially caught by the new tests. 

Please do speak to your usual advisor in the pensions team if you are concerned about the Pension Regulator’s powers in the context of any planned corporate activity.