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Welfare Reform and Pensions Act 1999

Section 9: Monitoring of employers’ payments to personal pension schemes

This section provides a new set of rules for ensuring that employers’ payments to personal pension schemes are made on time.

It is important that contributions to occupational and personal pensions should be paid on time. The Pensions Act 1995 introduced new safeguards for occupational pension schemes. That Act, and associated regulations, provided for payments to be made within set time limits and established penalties for non-compliance. The rules apply both to contributions by employers and to contributions which derive from deductions from employees’ earnings.

Employers can also make payments to their employees’ personal pensions. Currently, however, there are no equivalent rules requiring timely payment.

This section inserts two new sections into the Pension Schemes Act 1993, sections 111A and 111B. These provide a set of rules on the timely payment of contributions by employers into personal pension schemes. References below are to subsections of the newly inserted section 111A.

  • Subsections (1) to (5) set out the new rules, which are consistent with rules introduced by the Pensions Act 1995 for occupational pension schemes.

    The regime will cover employee contributions deducted from employees’ earnings and employers’ contributions to pensions. The rules cover the time limits within which payments have to be made and the sanctions that apply where payments are late or not made at all.

  • Subsection (6) requires trustees and managers of personal pension schemes to monitor the timeliness of payments by employers.

    Where a payment is late, or not made at all, the trustees and managers will be required to report to the Occupational Pensions Regulatory Authority (OPRA). The time limits within which reports must be submitted and the circumstances in which such reports will not be required will be set out in regulations.

  • Subsection (7) requires trustees and managers of schemes to provide information to employees on the amounts and dates of payments made to the scheme by employers.

  • Subsections (8) and (11) to (13) relate to provision for civil or criminal sanctions against employers for late payment or non-payment of amounts payable to personal pension schemes.

    OPRA will have power to impose a civil penalty where there has been a breach of the requirement to make timely payment of contributions; however, if a person fraudulently evades an obligation to pay a contribution deducted from an employer’s earnings, a criminal offence will be committed.

  • Subsections (9) and (10) give OPRA power to impose civil penalties on trustees and managers if they fail to carry out their monitoring role.

  • In relation to stakeholder pension schemes (see commentary on Part I), subsection (11)(a) ensures that an employer who has already been penalised under section 3(7) (for failing to comply with a request to deduct contributions to a stakeholder pension scheme from earnings) is not penalised again under these provisions.

  • Subsection (14) provides the Crown with immunity from prosecution in respect of an offence committed under subsection (12), but provides that such immunity does not extend to public servants who commit an offence under that subsection.

    This provision (inserted into the Pensions Schemes Act 1993, and relating to personal pension schemes) matches the immunity provision in section 121(3) of the Pensions Act 1995 for occupational schemes.

  • As part of the provisions for stakeholder pension schemes in Part I, section 3(5) allows regulations to provide for cases where an employer would pay contributions to a person other than the trustees or managers of a scheme (for example, to a clearing house, if this was set up). Subsection (16) gives a power to modify the requirements of the new section 111A for such cases.

  • Subsection (17) ensures that if an employee would have a right of action against his employer where contributions deriving from deductions from his earnings are not paid by the contractually agreed date, then that right will be unaffected (notwithstanding that such date may be earlier or later than the last day of the period prescribed in regulations within which such payment is required to be made).

The following references are to subsections in the new section 111B. They closely mirror the provisions already in place for occupational pension schemes under sections 98-103 of the Pensions Act 1995.

  • Subsections (1) and (2) provide OPRA with the power to require documents from any person who holds information about:

    • whether section 111A has been complied with;

    • whether an employer has failed to meet the obligation under that section to pay contributions on time; or

    • whether a person has fraudulently evaded the obligation to pay over a contribution deducted from employees’ earnings.

  • Subsection (3) gives OPRA’s inspectors powers to investigate any of the matters mentioned in subsection (1). It allows them to enter premises, to question anyone there and to demand documents for inspection.

  • Subsection (4) provides that an inspector wishing to enter premises must, if asked to do so, produce a certificate of appointment.

  • Subsection (5) specifies the premises that are liable to inspection. These are premises where:

    • the relevant employees work;

    • documents relevant to the administration of the employer’s business, the payment of the contributions or the relevant scheme are kept; or

    • the administration, or work connected with the administration, of the business, the contributions or the scheme is carried out.

    A private dwelling house is included in this provision only if it is used by, or by permission of, the occupier for trade or business.

  • Subsections (6) and (7) apply sections 100 to 103 of the Pensions Act 1995 in respect of OPRA’s powers to require documents or to inspect premises in connection with compliance with section 111A.

    Section 100 confers power on a justice of the peace (or, in Scotland, a justice) to issue warrants to enable OPRA to search premises in certain circumstances. The extension of section 100 means that OPRA will be able to seek a warrant where they have problems in obtaining documents relating to compliance with section 111A.

    Section 101creates offences for obstructing OPRA’s investigations.

    Section 102provides that OPRA’s powers do not enable them to require anyone to give information which would incriminate him or her or his or her spouse, or to require production of documents which would in court be subject to legal professional privilege. Section 102 also provides that liens on documents are unaffected by OPRA’s powers to require production of documents.

    Section 103enables OPRA to publish reports of its investigations.

  • Subsection (9) ensures that section 111B can be used to enforce in Great Britain rules contained in Northern Ireland legislation that correspond to section 111A.

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