Part 1 U.K. The Pensions Regulator

Modifications etc. (not altering text)

C1 Pt. 1 applied in part (with modifications) (20.7.2005 for specified purposes, 1.9.2005 for specified purposes, 5.12.2005 for specified purposes) by The Financial Assistance Scheme Regulations 2005 (S.I. 2005/1986), regs. 1(1), 4, Sch. 1 Pt. 1 (as amended (17.7.2008) by The Financial Assistance Scheme (Miscellaneous Amendments) Regulations 2008 (S.I. 2008/1903), regs. 1, 5(2), 13; (10.7.2009) by The Financial Assistance Scheme (Miscellaneous Provisions) Regulations 2009 (S.I. 2009/1851), regs. 1, 5, 18; (2.4.2010) by The Financial Assistance Scheme (Miscellaneous Amendments) Regulations 2010 (S.I. 2010/1149), regs. 1, 5, 15)

[F1 Sanctions for avoidance of employer debt etc U.K.

Textual Amendments

F1 Ss. 58A, 58B and cross-heading inserted (1.10.2021) by Pension Schemes Act 2021 (c. 1), ss. 107(2), 131(1); S.I. 2021/950, reg. 2(3)(d) (with reg. 3(1)(4))

58A Offence of avoidance of employer debt U.K.

(1) This section applies in relation to an occupational pension scheme other than—

(a) a money purchase scheme, or

(b) a prescribed scheme or a scheme of a prescribed description.

(2) A person commits an offence only if—

(a) the person does an act or engages in a course of conduct that—

(i) prevents the recovery of the whole or any part of a debt which is due from the employer in relation to the scheme under section 75 of the Pensions Act 1995 (deficiencies in the scheme assets),

(ii) prevents such a debt becoming due,

(iii) compromises or otherwise settles such a debt, or

(iv) reduces the amount of such a debt which would otherwise become due,

(b) the person intended the act or course of conduct to have such an effect, and

(c) the person did not have a reasonable excuse for doing the act or engaging in the course of conduct.

(3) A reference in this section to an act or course of conduct includes a failure to act.

(4) This section does not apply to a person if the act done, or course of conduct engaged in, by the person is in accordance with the person's functions as an insolvency practitioner in relation to another person.

(5) For the purposes of this section a reference to a debt due under section 75 of the Pensions Act 1995 includes a contingent debt under that section.

(6) Accordingly, in the case of such a contingent debt, the reference in subsection (2)(a) to preventing a debt becoming due is to be read as including a reference to preventing the occurrence of any of the events specified in section 75(4C)(a) or (b) of the Pensions Act 1995 upon which the debt is contingent.

(7) A person guilty of an offence under subsection (2) is liable—

(a) on summary conviction in England and Wales, to a fine;

(b) on summary conviction in Scotland, to a fine not exceeding the statutory maximum;

(c) on conviction on indictment, to imprisonment for a term not exceeding seven years or a fine, or both.

(8) Proceedings for an offence under subsection (2) may be instituted in England and Wales only—

(a) by the Regulator or the Secretary of State, or

(b) by or with the consent of the Director of Public Prosecutions.

(9) For the purposes of this section and sections 58B to 58D “insolvency practitioner”, in relation to a person, means—

(a) a person acting as an insolvency practitioner, in relation to that person, in accordance with section 388 of the Insolvency Act 1986, or

(b) an insolvency practitioner within the meaning of section 121(9)(b) (persons of a prescribed description).]