Article 43 contribution notice: relationship with employer debt
46.—(1) This Article applies where a contribution notice is issued to a person (“P”) under Article 43 and condition A or B is met.
(2) Condition A is met if, at the time at which the contribution notice is issued, there is a debt due from the employer to the trustees or managers of the scheme under Article 75 of the 1995 Order (deficiencies in the scheme assets).
(3) Condition B is met if, after the contribution notice is issued but before the whole of the debt due by virtue of the notice is recovered, a debt becomes due from the employer to the trustees or managers of the scheme under Article 75 of the 1995 Order.
(4) The Regulator may issue a direction to the trustees or managers of the scheme not to take any or any further steps to recover the debt due to them under Article 75 of the 1995 Order pending the recovery of all or a specified part of the debt due to them by virtue of the contribution notice.
(5) If the trustees or managers fail to comply with a direction issued to them under paragraph (4), Article 10 of the 1995 Order (civil penalties) applies to any trustee or manager who has failed to take all reasonable steps to secure compliance.
(6) Any sums paid—
(a)to the trustees or managers of the scheme in respect of any debt due to them by virtue of the contribution notice, or
(b)to the Board in respect of any debt due to it by virtue of the contribution notice (where it has assumed responsibility for the scheme in accordance with Chapter 3 of Part III (pension protection)),
are to be treated as reducing the amount of the debt due to the trustees or managers or, as the case may be, to the Board under Article 75 of the 1995 Order.
(7) Where a sum is paid to the trustees or managers of the scheme or, as the case may be, to the Board in respect of the debt due under Article 75 of the 1995 Order, P may make an application under this paragraph to the Regulator for a reduction in the amount of the sum specified in P’s contribution notice.
(8) An application under paragraph (7) must be made as soon as reasonably practicable after the sum is paid to the trustees or managers or, as the case may be, to the Board in respect of the debt due under Article 75 of the 1995 Order.
(9) Where such an application is made to the Regulator, the Regulator may, if it is of the opinion that it is appropriate to do so—
(a)reduce the amount of the sum specified in P’s contribution notice by an amount which it considers reasonable, and
(b)issue a revised contribution notice specifying the revised sum.
(10) For the purposes of paragraph (9), the Regulator must have regard to such matters as the Regulator considers relevant including, where relevant, the following matters—
(a)the amount paid in respect of the debt due under Article 75 of the 1995 Order since the contribution notice was issued,
(b)any amounts paid in respect of the debt due by virtue of that contribution notice,
(c)whether contribution notices have been issued to other persons in respect of the same non-compliance with the financial support direction in question as the non-compliance in respect of which P’s contribution notice was issued,
(d)where such contribution notices have been issued, the sums specified in each of those notices and any amounts paid in respect of the debt due by virtue of those notices,
(e)whether P’s contribution notice specifies that P is jointly and severally liable for the debt with other persons, and
(f)such other matters as may be prescribed.
(11) Where—
(a)P’s contribution notice specifies that P is jointly and severally liable for the debt with other persons, and
(b)a revised contribution notice is issued to P under paragraph (9) specifying a revised sum,
the Regulator must also issue revised contribution notices to those other persons specifying the revised sum and their joint and several liability with P for the debt in respect of that sum.