36.—(1) Where the conditions specified in paragraph (2) are met neither—
(a)Article 37 M1 of the 1995 Order (payment of surplus to employer), nor
(b)Article 76 M2 of that Order (excess assets on winding up),
(as the case may be) applies in respect of a payment from scheme funds made to the employer in relation to the scheme.
(2) The conditions specified in this paragraph are that—
(a)the trustees of a trust scheme have exercised a power under the scheme rules to make a payment to the employer out of funds held for the purposes of the scheme and that payment was made to the employer before the appointed day;
(b)at the time that the payment was made to the employer the scheme included—
(i)cash balance benefits, or
(ii)pensions derived from money purchase or cash balance benefits;
(c)no benefits other than those specified in sub-paragraph (b), money purchase benefits and death benefits secured by insurance policies or annuity contracts, and
(d)the trustees of the scheme treated the scheme as if it were a money purchase scheme and for that reason did not comply with the requirements—
(i)for schemes not in winding-up, of Article 37 of the 1995 Order, or
(ii)for schemes in winding up, of Article 76 of that Order,
before exercising the power to make a payment to the employer.
Marginal Citations
M1Article 37 was substituted by Article 227 of the Pensions (Northern Ireland) Order 2005 and amended by section 105 of the Pensions (No.2) Act (Northern Ireland) 2008
M2Article 76 was amended by paragraph 56 of Schedule 10 to the Pensions (Northern Ireland) Order 2005 and Article 11 of S.I. 2006/745