Bankruptcy (Scotland) Act 2016

105 Excessive contributions in pension-sharing cases: recovery orders

(1) In this section and section 106, “recovery order” means, in any proceedings to which section 104 applies—

(a) a decree granted under section 98(5),

(b) a decree granted under section 99(6), or

(c) an order made under section 100(2).

(2) A recovery order may include provision—

(a) requiring the person responsible for a pension arrangement in which TE (see section 104(11)) has acquired rights derived directly or indirectly from the pension-sharing transaction (again see that section) to pay an amount to the trustee,

(b) adjusting the liabilities of the pension arrangement in respect of TE,

(c) adjusting any liabilities of the pension arrangement in respect of any other person that derive, directly or indirectly, from rights of TE under the arrangement,

(d) for the recovery by the person responsible for the pension arrangement (whether by deduction from any amount which that person is ordered to pay or otherwise) of costs incurred by that person in complying in the debtor’s case with any requirement under section 106(1) or in giving effect to the order.

(3) Subsection (2) is without prejudice to the generality of section 98(5), 99(6) or 100(2).

(4) In subsection (2), references to adjusting the liabilities of a pension arrangement in respect of a person include, in particular, reducing the amount of any benefit or future benefit to which that person is entitled under the arrangement.

(5) The maximum amount which the person responsible for an arrangement may be required to pay by a recovery order is the smallest of—

(a) so much of the appropriate amount (see section 104(11)) as is recoverable in accordance with section 104,

(b) so much, if any, of the amount of the unfair contributions (within the meaning given by section 104(7)) as is not recoverable by way of an order under section 101 containing provision such as is mentioned in section 102(1)(a), and

(c) the value of the debtor’s rights under the arrangement acquired by TE as a consequence of the transfer of the appropriate amount.

(6) A recovery order which requires the person responsible for an arrangement to pay an amount (“the restoration amount”) to the trustee must provide for the liabilities of the arrangement to be correspondingly reduced.

(7) For the purposes of subsection (6), liabilities are correspondingly reduced if the difference between—

(a) the amount of the liabilities immediately before the reduction, and

(b) their amount immediately after the reduction,

is equal to the restoration amount.

(8) A recovery order in respect of an arrangement—

(a) is binding on the person responsible for the arrangement, and

(b) overrides provisions of the arrangement to the extent that they conflict with the provisions of the order.