Chapter 5 – Gathering Information
Section 190: Information to be provided to the Board etc
697.This section sets out that certain people will be required to provide prescribed information automatically to the Board, or to a person carrying out the Board’s functions, who is authorised for this purpose, and the circumstances where this will apply will be set out in regulations. In particular, the regulations may set out information which must be provided to enable a determination to be made of a person’s entitlement to pension compensation from the Pension Protection Fund.
698.The regulations must specify how individuals are to be notified of the identity of any person who is authorised to receive information on behalf of the Board.
Section 191: Notices requiring provision of information
699.The Board can require persons involved with a scheme to provide a specified document or information which is relevant to the exercise of the Board’s functions. The notice will specify the manner in which the information or document must be provided and the time limit for doing so. The notice can also be given on behalf of the Board by a person authorised by it.
Section 192: Entry of premises
700.This section allows the Board to appoint a person who may enter scheme premises in order to gather information that is relevant to the functions of the Board. This provision is not intended to be used in the same way as the Regulator’s inspection of premises powers. Instead, it is envisaged that it will be routine for an appointed person to visit scheme premises during an assessment period – normally with prior appointment. While on the premises, the appointed persons may:
make such examination or inquiry as may be necessary;
require persons to produce or secure the production of any required document or any other document for inspection;
make copies of any such document;
take possession of any document or take other steps to prevent interference with it;
require information stored in electronic form to be made accessible;
interview persons whom he has reasonable cause to believe to be able to give relevant information.
701.Subsection (2) states that “scheme premises” to which the powers in subsection (1) relate are those being used for the business of, or for the storage of information relevant to, the employer, or the employer’s insolvency practitioner, or used to keep documents relevant to the administration of the scheme. Private dwelling which are not used for the purposes of trade or business are not included.
702.Subsection (3) requires an appointed person to produce his certificate of appointment if asked for it when seeking to enter premises, while subsection (4) allows the appointed person to be accompanied by such persons as he considers appropriate.
703.Subsections (5) and (6) set out that documents which are seized under this section may be kept by the Board for the retention period of 12 months. Where appropriate, the Board may extend that period by a further period of up to 12 months on an ongoing basis.
704.Subsection (7) defines “appointed person” as a person authorised by the Board to enter premises in order to gather information in relation to the scheme. In practice, this will often be an actuary or other professional who will be appointed to gather information in order to carry out a valuation during the assessment period.
Section 193: Penalties relating to sections 191 and 192
705.This section is designed to ensure that there are effective criminal sanctions available for use against those who intentionally fail to comply with their obligations under section 191 (notices) and section 192 (entry of premises). There are two types of offences as set out below, though it is envisaged that these penalties will only be used in exceptional circumstances. They are designed to act as an important deterrent, and to encourage individuals to provide the information which the Board will need to carry out its role.
706.When a person (without reasonable excuse) fails to comply with a request to provide information or produce a document when required by section 191, he will be guilty of an offence which can lead to a fine of up to level 5 on the standard scale. A person will also be liable to such a fine if he intentionally delays or obstructs a person exercising a power under section 192 or does not secure production of a document or answer a question or provide information.
707.For the more serious offence of deliberately altering, destroying or concealing a document that a person may be asked to produce (again without reasonable excuse), a person will be guilty of an offence, which can lead to a fine or imprisonment or both.
708.This section should be read in conjunction with section 195 (offence of providing false or misleading information to the Board).
Section 194: Warrants
709.Subsection (1) provides that the Board may apply to a justice of the peace for a warrant to enter premises, using force if necessary. A warrant can be issued if the justice of the peace is satisfied by information given on oath by or on behalf of the Board that there are reasonable grounds for believing:
that there are documents on the premises which have been requested under section 191 or 192 which have not been provided, or if the documents were requested, they would either not be produced, or would be removed from the premises, hidden, tampered with, or destroyed;
that an individual will misuse or misappropriate assets of the scheme, and there is information on the premises which relates to whether the act will be done and could be requested using sections 191 or 192.
710.Subsection (2) outlines what a warrant can authorise a person, who is appointed by the Board, to do. This person (an inspector) may enter premises (using force if necessary), take possession of any document mentioned in subsection (1) or take necessary steps to preserve the document or take copies. The inspector may also require any persons named in the warrant to give an explanation in relation to the document. The inspector may also require that the document be produced in a form in which it may be taken away and is legible.
711.Subsection (3) provides that an inspector may be accompanied by any person he considers necessary (such as an expert to carry out a valuation of the property, or an accountant to identify relevant accounts). Subsection (4) sets out that a warrant under this section shall be valid for one month from the date of issue.
712.Subsection (5) sets out that documents which are seized by an inspector with a warrant may be retained by the Board (or individuals authorised by the Board) for twelve months from the date of possession. However, subsection (6) allows the Board to extend the retention period for a further period of up to twelve months, and they may repeat this extension on an ongoing basis.
Provision of false or misleading information
Section 195: Offence of providing false or misleading information to the Board
713.A person who knowingly or recklessly provides false or misleading information is guilty of an offence if the information was provided to meet a requirement to provide information set out in regulations under section 190, in response to a notice under section 191 in response to a request by an authorised person during entry under section 192 or if the person providing information was aware that the Board would use the information for the purposes of discharging its functions. That person may be liable to a fine or imprisonment or both. This section should be read in conjunction with section 193.
Use of information
Section 196: Use of information
714.This provision ensures that where the Board holds information that is relevant to a particular function, it may also use that information for any other of its functions.
Disclosure of information
Section 197: Restricted information
715.Restricted information must not be disclosed by the Board or its agents except with the consent of the person to whom it relates and of the person who provided the information (if different), or except as allowed by sections 198 to 203 and section 235. “Restricted information” is all information gathered by the Board, or individuals acting on behalf of the Board in carrying out its role. However, it does not include information which has already been made public or if the form of the information would prevent information relating to a person to be ascertained from it.
716.Unauthorised disclosure of restricted information will represent an offence, the penalty for which may be a fine on summary conviction, or a fine and/or imprisonment for up to two years on conviction on indictment.
Section 198: Disclosure for facilitating exercise of functions by the Board
717.Restricted information may be disclosed for the purpose of enabling the Board to exercise its functions. Subsections (2) and (3) specify that the Board may disclose information to a person qualified to provide advice where such a disclosure is necessary in order to take professional advice which will enable it to carry out any of its functions.
Section 199: Disclosure for facilitating exercise of functions by the Regulator
718.Restricted information may be disclosed to the Regulator for the purpose of enabling it to exercise its functions. The Regulator has a similar power in order to allow it to disclose restricted information to the Board, where the information may assist the Board to exercise its functions.
Section 200: Disclosure for facilitating exercise of functions by other supervisory authorities
719.Schedule 8 sets out a list of bodies to whom the Board may disclose restricted information where the Board considers the information is relevant to the discharge of the functions of that body specified in the Schedule. The Secretary of State may amend the Schedule after consultation with the Board by adding or removing bodies or functions from the list.
Schedule 8: Restricted information held by Board: certain permitted disclosures to facilitate exercise of functions
720.This Schedule sets out the list of bodies to whom the Board may disclose restricted information where the Board considers the information is relevant to the discharge of the functions of that body specified in the Schedule. The Secretary of State may amend the Schedule after consultation with the Board by adding or removing persons or altering functions in the list.
Section 201: Other permitted disclosures
721.Restricted information may be disclosed to the Secretary of State, the Commissioners of the Inland Revenue and the Department for Social Development in Northern Ireland if the disclosure appears to the Board to be in the interests of members of occupational pension schemes or in the public interest. Disclosure of restricted information is further allowed if the information relates to certain proceedings (see subsection (2)), to certain prosecution bodies (see subsection (4)), or to a Regulator- appointed trustee. Disclosure may also be made with the Board’s consent (see subsections (8) and (9)) which will take account of any representations made.
Section 202: Tax Information
722.This section relates to disclosure of information by the Inland Revenue. It provides that the Inland Revenue will not be bound by the restrictions on disclosure imposed by section 182 of the Finance Act 1989, so long as the information is relevant to the exercise of the Board’s functions. When the Inland Revenue discloses information to the Board, it should treat it as “restricted information”. But by virtue of subsection (4), it may not be further disclosed unless the Commissioners of the Inland Revenue or Customs and Excise have given permission, or criminal proceedings are being brought under this Act, the Pensions Act 1995 or the Pension Schemes Act 1993.
Provision of information to scheme members etc
Section 203: Provision of information to members of schemes etc
723.The Board may be required to provide certain information to certain people as set out in regulations. These regulations may require information to be given to scheme trustees or managers, the employer in relation to the scheme, and certain other individuals involved with the scheme. In particular, once the Board has assumed responsibility for a scheme it will be responsible for notifying individuals of their entitlement to compensation and other similar information.
724.The regulations may also require trustees or managers to disclose information to members of the scheme relating to the Board’s involvement with their scheme - for example, details of the valuation sent by the Board to the trustees or managers will be disclosed to members so that they may (if they wish) appeal the calculation of their individual entitlement.
725.Subsection (2) allows the Board to voluntarily disclose restricted information to individuals or their representative, where the disclosure relates to the entitlement of that person to compensation. Similarly, subsection (3) gives the Board the power to voluntarily disclose restricted information to individuals, where the information relates to the Board’s involvement with a scheme, the Board is satisfied that the disclosure is reasonable and the disclosure is made to all “affected persons”. (See section 197 which deals with the disclosure of restricted information.)
726.The term “affected person” is defined under subsection (4) as a member of the scheme or a person nominated to receive information on their behalf, while subsection (5) further clarifies that a nomination may be made in writing by an individual for another person to receive information on their behalf. The nomination becomes effective when the notice is received by the Board, and ceases to be effective when the Board receives a further notice from the member withdrawing the nomination.
727.Subsection (6) also sets out that disclosure of restricted information is permitted in the case of an occupational pension scheme where the disclosure is made to a trustee or manager, any professional adviser, the employer or insolvency practitioner and it is relevant to the exercise of their function. The Board must consider it reasonable to make the disclosure to enable them to carry out their role in relation to the scheme.
Section 204: Sections 190 to 203: interpretation
728.This section provides interpretation of terms for the purpose of sections 190 to 203. The term ‘document’ is defined. References to ‘the Board’s functions’, ‘trustee’, ‘manager’, ‘professional adviser’ and ‘employer’ are also explained.
Section 205: Publishing reports etc
729.This section enables the Board to publish reports in any form (including for example on the internet), and sets out that the reports will be exempt from defamation, unless the reports are made with malice. The provision is designed to allow the Board to publish a variety of reports if it considers it appropriate. For example, this could include reports containing details of consultation exercises, or statistics concerning the Board’s functions, or recommendations of good practice for schemes which are taken over by the Board. It will also allow the Board to publish details of its decisions, and its decision-making processes, where it is appropriate to do so