Chapter IIPayment by Secretary of State of unpaid scheme contributions
123Interpretation of Chapter II
(1)For the purposes of this Chapter, an employer shall be taken to be insolvent if, but only if, in England and Wales—
(a)he has been adjudged bankrupt or has made a composition or arrangement with his creditors;
(b)he has died and his estate falls to be administered in accordance with an order under section 421 of the [1986 c. 45.] Insolvency Act 1986; or
(c)where the employer is a company—
(i)a winding-up order or an administration order is made or a resolution for voluntary winding up is passed with respect to it,
(ii)a receiver or manager of its undertaking is duly appointed,
(iii)possession is taken, by or on behalf of the holders of any debentures secured by a floating charge, of any property of the company comprised in or subject to the charge, or
(iv)a voluntary arrangement proposed for the purpose of Part I of the [1986 c. 45.] Insolvency Act 1986 is approved under that Part.
(2)For the purposes of this Chapter, an employer shall be taken to be insolvent if, but only if, in Scotland—
(a)sequestration of his estate is awarded or he executes a trust deed for his creditors or enters into a composition contract;
(b)he has died and a judicial factor appointed under section 11A of the [1889 c. 39.] Judicial Factors (Scotland) Act 1889 is required by that section to divide his insolvent estate among his creditors; or
(c)where the employer is a company—
(i)a winding-up order or an administration order is made or a resolution for voluntary winding up is passed with respect to it,
(ii)a receiver of its undertaking is duly appointed, or
(iii)a voluntary arrangement proposed for the purpose of Part I of the [1986 c. 45.] Insolvency Act 1986 is approved under that Part.
(3)In this Chapter—
“contract of employment”, “employee”, “employer” and “employment” and other expressions which are defined in the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 have the same meaning as in that Act;
“holiday pay” means—
(a)pay in respect of holiday actually taken; or
(b)any accrued holiday pay which under the employee’s contract of employment would in the ordinary course have become payable to him in respect of the period of a holiday if his employment with the employer had continued until he became entitled to a holiday;
“occupational pension scheme” means any scheme or arrangement which provides or is capable of providing, in relation to employees in any description of employment, benefits, in the form of pensions or otherwise, payable to or in respect of any such employees on the termination of their employment or on their death or retirement.
(4)For the purposes of this Chapter, the definition of “personal pension scheme” in section 1 has effect with the substitution for the words “employed earners” of the word “employees”.
(5)Any reference in this Chapter to the resources of a scheme is a reference to the funds out of which the benefits provided by the scheme are from time to time payable.
124Duty of Secretary of State to pay unpaid contributions to schemes
(1)If, on an application made to him in writing by the persons competent to act in respect of an occupational pension scheme or a personal pension scheme, the Secretary of State is satisfied—
(a)that an employer has become insolvent; and
(b)that at the time he did so there remained unpaid relevant contributions falling to be paid by him to the scheme,
then, subject to the provisions of this section and section 125, the Secretary of State shall pay into the resources of the scheme the sum which in his opinion is payable in respect of the unpaid relevant contributions.
(2)In this section and section 125 “relevant contributions” means contributions falling to be paid by an employer to an occupational pension scheme or a personal pension scheme, either on his own account or on behalf of an employee; and for the purposes of this section a contribution shall not be treated as falling to be paid on behalf of an employee unless a sum equal to that amount has been deducted from the pay of the employee by way of a contribution from him.
(3)The sum payable under this section in respect of unpaid contributions of an employer on his own account to an occupational pension scheme or a personal pension scheme shall be the least of the following amounts—
(a)the balance of relevant contributions remaining unpaid on the date when he became insolvent and payable by the employer on his own account to the scheme in respect of the 12 months immediately preceding that date;
(b)the amount certified by an actuary to be necessary for the purpose of meeting the liability of the scheme on dissolution to pay the benefits provided by the scheme to or in respect of the employees of the employer;
(c)an amount equal to 10 per cent. of the total amount of remuneration paid or payable to those employees in respect of the 12 months immediately preceding the date on which the employer became insolvent.
(4)For the purposes of subsection (3)(c), “remuneration” includes holiday pay, statutory sick pay, statutory maternity pay under Part V of the [1986 c. 50.] Social Security Act 1986 or Part XII of the [1992 c. 4.] Social Security Contributions and Benefits Act 1992, maternity pay under Part III of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 and any such payment as is referred to in section 122(4) of that Act (guarantee payments etc.).
(5)Any sum payable under this section in respect of unpaid contributions on behalf of an employee shall not exceed the amount deducted from the pay of the employee in respect of the employee’s contributions to the scheme during the 12 months immediately preceding the date on which the employer became insolvent.
125Certification of amounts payable under s. 124 by insolvency officers
(1)This section applies where one of the officers mentioned in subsection (2) (“the relevant officer”) has been or is required to be appointed in connection with an employer’s insolvency.
(2)The officers referred to in subsection (1) are—
(a)a trustee in bankruptcy;
(b)a liquidator;
(c)an administrator;
(d)a receiver or manager; or
(e)a trustee under a composition or arrangement between the employer and his creditors or under a trust deed for his creditors executed by the employer;
and in this subsection “trustee”, in relation to a composition or arrangement, includes the supervisor of a voluntary arrangement proposed for the purposes of and approved under Part I or VIII of the [1986 c. 45.] Insolvency Act 1986.
(3)Subject to subsection (5), where this section applies the Secretary of State shall not make any payment under section 124 in respect of unpaid relevant contributions until he has received a statement from the relevant officer of the amount of relevant contributions which appear to have been unpaid on the date on which the employer became insolvent and to remain unpaid; and the relevant officer shall on request by the Secretary of State provide him as soon as reasonably practicable with such a statement.
(4)Subject to subsection (5), an amount shall be taken to be payable, paid or deducted as mentioned in subsection (3)(a) or (c) or (5) of section 124 only if it is so certified by the relevant officer.
(5)If the Secretary of State is satisfied—
(a)that he does not require a statement under subsection (3) in order to determine the amount of relevant contributions that was unpaid on the date on which the employer became insolvent and remains unpaid, or
(b)that he does not require a certificate under subsection (4) in order to determine the amounts payable, paid or deducted as mentioned in subsection (3)(a) or (c) or (5) of section 124,
he may make a payment under that section in respect of the contributions in question without having received such a statement or, as the case may be, such a certificate.
126Complaint to industrial tribunal
(1)Any persons who are competent to act in respect of an occupational pension scheme or a personal pension scheme and who have applied for a payment to be made under section 124 into the resources of the scheme may present a complaint to an industrial tribunal that—
(a)the Secretary of State has failed to make any such payment; or
(b)any such payment made by him is less than the amount which should have been paid.
(2)Such a complaint must be presented within the period of three months beginning with the date on which the decision of the Secretary of State on that application was communicated to the persons presenting it or, if that is not reasonably practicable, within such further period as is reasonable.
(3)Where an industrial tribunal finds that the Secretary of State ought to make a payment under section 124, it shall make a declaration to that effect and shall also declare the amount of any such payment which it finds that the Secretary of State ought to make.
127Transfer to Secretary of State of rights and remedies
(1)Where in pursuance of section 124 the Secretary of State makes any payment into the resources of an occupational pension scheme or a personal pension scheme in respect of any contributions to the scheme, any rights and remedies in respect of those contributions belonging to the persons competent to act in respect of the scheme shall, on the making of the payment, become rights and remedies of the Secretary of State.
(2)Where the Secretary of State makes any such payment as is mentioned in subsection (1) and the sum (or any part of the sum) falling to be paid by the employer on account of the contributions in respect of which the payment is made constitutes—
(a)a preferential debt within the meaning of the [1986 c. 45.] Insolvency Act 1986 for the purposes of any provision of that Act (including any such provision as applied by an order made under that Act) or any provision of the [1985 c. 6.] Companies Act 1985; or
(b)a preferred debt within the meaning of [1985 c. 66.] the Bankruptcy (Scotland) Act 1985 for the purposes of any provision of that Act (including any such provision as applied by section 11A of the [1889 c. 39.] Judicial Factors (Scotland) Act 1889),
then, without prejudice to the generality of subsection (1), there shall be included among the rights and remedies which become rights and remedies of the Secretary of State in accordance with that subsection any right arising under any such provision by reason of the status of that sum (or that part of it) as a preferential or preferred debt.
(3)In computing for the purposes of any provision referred to in subsection (2)(a) or (b) the aggregate amount payable in priority to other creditors of the employer in respect of—
(a)any claim of the Secretary of State to be so paid by virtue of subsection (2); and
(b)any claim by the persons competent to act in respect of the scheme,
any claim falling within paragraph (a) shall be treated as if it were a claim of those persons; but the Secretary of State shall be entitled, as against those persons, to be so paid in respect of any such claim of his (up to the full amount of the claim) before any payment is made to them in respect of any claim falling within paragraph (b).