7 days

7 Days is a weekly round up of developments in pensions, normally published on Monday afternoons. We collate this information from key industry sources, such as the DWP, HMRC and TPR.

In this 7 Days

• Regulations amending PPF’s creditor rights recast
• Corporate Transparency and Register Reform: Government response to consultation published
• EDPB publishes guidelines on data processors and controllers
• Financial regulators’ Regulatory Initiatives Grid updated
• TPR COVID guidance updated
• R (on the application of Julie Delve and Karen Glynn) v Secretary of State for Work and Pensions
• Mr N (PO – 21990) (compliance defence not available where loss was due to maladministration)

Regulations amending PPF’s creditor rights recast

The Pension Protection Fund (Moratorium and Arrangements and Reconstructions for Companies in Financial Difficulty) (Amendment and Revocation) Regulations 2020 came into force on 16 September 2020.

These regulations revoke and recast earlier amendment regulations (see 7 Days) which were defective. As before, the regulations extend the PPF’s creditor rights in relation to the moratorium and restructuring plans introduced by the CIGA, to cover co-operative societies and community benefit societies.

Corporate Transparency and Register Reform: Government response to consultation published

On 18 September 2020, BEIS published the Government’s response to the 2019 Corporate Transparency and Register Reform consultation, on options to enhance the role of Companies House and increase the transparency of UK corporate entities.

The reforms aim to “clamp down on fraud and money laundering”, and to give Companies House “more powers to query and reject information, to improve the quality of data on the register, as well as affording users greater protections over their personal data, to help protect them from fraud and other harms”. These reforms “will not impact on the typical speed at which a company or organisation is formed and other filings are completed”.

Among other things, the proposals include:

• introducing compulsory identity verification for, amongst others, all directors and People with Significant Control (“PSCs”) of UK registered companies, and individuals who file information on behalf of a company
• tightening regulation on amendments to accounting reference periods, and reviewing aspects of accounts filings including the exemptions that allow companies to submit micro or dormant accounts
• removing restrictions to enable certain personal information to be removed from the register
• introducing an obligation on bodies that fall under anti-money laundering regulations to report discrepancies between the public register of companies and the information they hold.

The Government will consult on further changes to make Companies House “more useful and usable, including reforms to the filing of company accounts”, and will bring forward legislation to enact the reforms to the register when Parliamentary time allows.

The Companies House website also notes that, following the Government’s response, it has stopped removing dissolved records from its service with immediate effect, and that it will return records for all companies dissolved since 2010 back on to the register in early 2021.

EDPB publishes guidelines on data processors and controllers

On 15 September, the European Data Protection Board (“EDPB”) announced that Guidelines on the concepts of controller and processor in the GDPR had been adopted (subject to a consultation, which runs until 19 October 2020). The notes state that, since the GDPR came into force, questions have been raised as to what extent it brought changes to these concepts, particularly of joint controllership and the obligations for processors. The new Guidelines explain the concepts, and give detailed guidance on their consequences for controllers, processors and joint controllers.

In addition, as a follow-up to the Schrems II ruling, the EDPB has created a taskforce to prepare recommendations to assist controllers and processors with their duty to identify and implement appropriate supplementary measures to ensure adequate protection when transferring data to third countries (ie countries outside the EU and the EEA).

Financial regulators’ Regulatory Initiatives Grid updated

On 18 September 2020, the Financial Services Regulatory Initiatives Forum (which is made up of a number of financial regulators including HMT, the FCA and the PRA, and most recently, TPR and the ICO) published an updated Regulatory Initiatives Grid (see 7 Days). The Grid provides detail on the timing of regulatory initiatives over a 12-month horizon.

The “Pensions and retirement income” section has been expanded to include relevant TPR initiatives. The document also states that, “to give a fuller picture of activity in this sector”, it now covers “some long-running FCA and joint FCA/TPR initiatives as well as some new initiatives such as the FCA initiative to increase take-up of guidance from Pension Wise.”

TPR COVID guidance updated

On 16 September 2020, TPR updated its COVID-19 guidance setting out what is expected of pension scheme providers. An update had been expected before the expiry date of 30 September of some easements granted earlier in the year (see 7 Days).

From 1 January 2021, DC schemes and providers will be asked to resume reporting late contribution payments no later than 90 days after the due date. This will become mandatory by 1 April 2021. (Earlier in the year, TPR had extended the maximum period DC pension schemes and trustees had to report late contribution payments from 90 to 150 days, in order to give employers more time before enforcement action was taken.)

The time frame for reverting to 90 days maximum late reporting has been set “to ensure schemes have sufficient time to adjust systems and processes and to ensure employers who suffered the effects of the pandemic have been afforded the additional time to work with their provider to bring any outstanding contributions up to date”.

Other types of enforcement will start to return to normal from 1 October 2020. This includes enforcing the requirement for schemes to submit audited accounts and investment statement reviews. TPR will also revert to reviewing chairs’ statements submitted on and after that date as usual.

TPR notes that it had temporarily eased these requirements so trustees could concentrate on the immediate risks the pandemic caused to their schemes. It states however that it will continue to take a risk-based, proportionate approach to enforcement decisions.

Guidance for trustees considering employer requests for a reduction or suspension of deficit repair contributions (“DRCs”) remains unchanged for now, although it remains under review and will be updated in line with the evolving situation. TPR recognises that deferrals may continue to be appropriate in certain circumstances, subject to trustees undertaking appropriate due diligence, with TPR expecting greater insight into an employer’s short-term liquidity to have developed since the coronavirus lockdown began.

R (on the application of Julie Delve and Karen Glynn) v Secretary of State for Work and Pensions

The Court of Appeal has dismissed an appeal in relation to changes to the state pension age for women. The court unanimously dismissed claims of age discrimination, sex discrimination and lack of notice. Finding that it was “not a case where the court can interfere with the decisions taken through the Parliamentary process”, it ruled that the DWP had taken adequate steps to notify those affected by the changes.

The Parliamentary Ombudsman’s investigation remains ongoing.

The House of Commons Library has updated its briefing paper looking at the legislation increasing the state pension age for women born in the 1950s and the campaigns against the increases.

Mr N (PO – 21990) (compliance defence not available where loss was due to maladministration)

TPO has upheld a complaint that a scheme unreasonably delayed a transfer request.

Although the scheme issued the transfer value in accordance with statutory requirements, the document never reached the member, and the scheme failed to respond to his queries. TPO concluded that this amounted to maladministration and led to financial loss.

For more detail, please see our case summary.