Pensions legislation and case law update: the latest developments week ended 27 August

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This week’s update covers the Pensions Regulator’s interim response to its consultation on its combined code of practice and the Regulator’s decision to prosecute the former owner of Norton Motorcycles over the breach of the employer-related investment restrictions.

PASA announces Benefit Statements working group

On 16 August 2021, PASA (the Pensions Administration Standards Association) announced that it is to form part of a DWP led working group to consider development of 'an approach to a statements season', the changes needed to help implement delivery and guidance.

The announcement follows the May 2021 DWP consultation on new 'simpler annual benefits statements' including draft regulations and draft statutory guidance (see our insight update). 

DWP factsheet published on impact on GMP indexation of switch to single-tier state pension

In 2019, following complaints by two individuals, the Parliamentary and Health Service Ombudsman (the PHSO) found the Government guilty of maladministration over unclear, inaccurate and incomplete communication of the negative effect that the change to the single-tier state pension might have on increases to certain individuals' GMP benefits where they had contracted out of the state pension.

The PHSO recommended that the Government provide clearer information about the impact that the GMP indexation changes might have and that it invites other individuals who believe that they might have suffered in a similar way to come forward.

The DWP proposed that it publish a factsheet on GOV.UK by way of response to the Ombudsman's findings, a draft of which was with the PHSO for comments. This factsheet  is now available. Trustees of formerly contracted-out defined benefit schemes may wish to let members know so that they can obtain further details of the issue and, where relevant, take steps to obtain redress. 

Pensions Regulator publishes an interim response to its consultation on the new unified code of practice

The Pensions Regulator has published a short interim response to its March 2021 consultation on introducing a single code of practice. 

The Regulator has said there is general support for its approach, although there were two main areas of concern raised by the respondents:

  • firstly, there was unease at the draft provision stipulating that governing bodies should ensure no more than 20% of scheme investments are held in assets not traded on regulated markets. The Regulator claimed its intention in including this provision was to protect members of poorly run, typically small schemes from investment in inappropriate assets, rather than interfere with unregulated investments in well-governed, typically larger schemes. The Regulator has agreed to include amended wording in the final version of the new code to reflect this intention.
  • secondly, whether the new "own risk assessment" (ORA) process, in particular regarding the timeframe and format, will place unnecessary burden on smaller schemes. Whilst remaining of the view that trustees should prepare their first ORA in a timely fashion, the Regulator will consider how often the ORA should be reviewed and whether any possible changes can be made, particularly for smaller schemes.

The Regulator has confirmed that it does not yet have a final publication date for the new code, although it is not expected to be laid before Parliament before spring 2022. 

Former Norton Motorcycles owner to be prosecuted for employer-related investment breaches

The Pensions Regulator has announced that the former owner of Norton Motorcycles (and sole trustee of three defined contribution pension schemes) is to be prosecuted for breaches of the employer-related investment rules. The investments were made between 2012 and 2013 in return for preference shares in Norton Motorcycle Holdings Ltd. 

This is a useful reminder that, subject to certain exceptions, it is a criminal offence to invest more than 5% of the current market value of scheme resources in employer-related investments. A breach of this can lead to a fine or imprisonment, or both.

Pensions Ombudsman publishes corporate plan for 2021 to 2024

The Pensions Ombudsman has published its corporate plan for 2021 to 2024, outlining its strategic goals for the next three years together with updated key performance indicators for the coming year. 

The Ombudsman states that it will work with stakeholders to improve dispute resolution standards across the pensions industry and improve customer experience, focusing on reducing customer journey times and increasing efficiency in resolving complaints. Amongst expected improvements are a new customer portal, enabling customers to submit general enquiries and online applications.  This will be launched soon, once digital service standard requirements are met.

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