The Occupational Pension Schemes (Payments to Employer) Regulations 2006

Schemes that are subject to Part 3 of the 2004 Act – determination of assets and liabilities

4.—(1) In the case of a scheme to which regulation 3(1)(a) applies, where the trustees propose to make a payment to the employer, either—

(a) the written valuation of the scheme's assets and liabilities required under section 37(3)(a) of the 1995 Act shall be prepared in accordance with this regulation and regulations 5 and 6; or

(b) where—

(i) an actuarial valuation has been prepared for the purposes of Part 3 of the 2004 Act M1 ; and

(ii) this valuation is valid for the purposes of regulation 9,

the trustees may use this valuation for the purposes of regulation 7(1) and section 37(3)(a), (“a Part 3 valuation”).

(2) Where trustees use a Part 3 valuation—

(a) the value to be placed on the scheme's liabilities shall be the value placed by the actuary on the scheme's liabilities for the purposes of the actuary's estimate of the solvency of the scheme included in that valuation, in accordance with—

(i) regulation 7(6)(a)(i) and (ii); or

(ii) regulation 7(6)(b),

as the case may be, of the Occupational Pension Schemes (Scheme Funding) Regulations 2005 M2 (actuarial valuations and reports); and

(b) the value to be placed on the scheme's assets shall be the value placed by the actuary on the scheme's assets for the purposes of the actuary's estimate of the solvency of the scheme included in that valuation.

(3) Subject to paragraph (7), the assets of the scheme to be taken into account for the purposes of the written valuation specified in paragraph (1)(a) are the assets attributed to the scheme in the relevant accounts, excluding—

(a) any resources invested (or treated as invested by section 40 of the 1995 Act) in contravention of section 40(1) of the 1995 Act (restriction on employer-related investments);

(b) any amount treated as a debt under section 228(3) of the 2004 Act (failure to make payments) which is unlikely to be recovered without disproportionate cost or within a reasonable time; and

(c) where it appears to the actuary that the circumstances are such that it is appropriate to exclude them, any rights under an insurance policy.

(4) Subject to paragraph (6), the liabilities of the scheme to be taken into account for the purposes of the actuarial valuation specified in paragraph (1)(a) are any liabilities—

(a) in relation to a member of the scheme by virtue of—

(i) any right that has accrued to or in respect of him to future benefits under the scheme rules; or

(ii) any entitlement to the present payment of a pension or other benefit which he has under the scheme rules; and

(b) in relation to the survivor of a member of the scheme, by virtue of any entitlement to benefits, or right to future benefits which he has under the scheme rules in respect of the member.

(5) For the purposes of paragraph (4)—

“right” includes a pension credit right; and

“the survivor” of a member is a person who—

(a) is the widow, widower or surviving civil partner of the member; or

(b) has survived the member and has any entitlement to benefit, or right to future benefits, under the scheme in respect of the member.

(6) Where rights under an insurance policy are excluded under paragraph (3)(c), the liabilities secured by the policy shall be disregarded for the purposes of paragraph (4).

(7) Where arrangements are being made by the scheme for the transfer to or from it of accrued rights and any pension credit rights, until such time as the trustees or managers of the scheme to which the transfer is being made (“the receiving scheme”) have received assets of the full amount agreed by them as consideration for the transfer, it shall be assumed—

(a) that those rights have not been transferred; and

(b) that any assets transferred in respect of the transfer of those rights are assets of the scheme making the transfer, and not the receiving scheme.

Marginal Citations

M1 See section 224(2)(a) of the Pensions Act 2004. Part 3 of the Pensions Act 2004 is modified by S.I. 2005/3377 and 3380.

M2 S.I. 2005/3377.