02 Introduction
03 The Pensions Regulator
04 Legislation
05 HMRC
06 Public service pension schemes
07 Other news
08 The end of contracting-out
09 2017 developments
1 10 On the Horizon
11 Contact Details
IN THIS ISSUE
PENSIONS ROUND-UPJANUARY 2017
Welcome to the latest edition of DLA Piper’s monthly newsletter – Pensions Round-Up – in which we provide an overview of developments in pension legislation, case law and regulatory guidance.
In this edition we look at key developments from January 2017 including the following.
■ The Pensions Regulator: a report about the exercise of the Regulator’s power to issue a fine where trustees fail to prepare the chair’s annual statement; and the publication of annual statistics on occupational DC trust-based pension schemes and memberships.
■ Legislation: amendments to the regulations on the provision of information when certain lump sum death benefits are paid; the progress of the Pension Schemes Bill through Parliament; and regulations increasing the PPF compensation cap and levy ceiling.
■ HMRC: the latest Countdown Bulletin in relation to the end of contracting-out; and statistics about flexible payments made in the fourth quarter of 2016.
■ Public service pension schemes: regulations bringing into force provisions of the Enterprise Act 2016 concerning a cap on public sector exit payments; and a judgment considering objective justification and age discrimination.
■ Other news: the launch by TPAS of an online pension scam guidance tool.
■ The end of contracting-out: a reminder of an upcoming deadline of 5 April 2017 for trustees to make amendments to their rules on revaluation of Guaranteed Minimum Pensions.
■ 2017 developments: a look ahead to some developments expected in 2017 that may require trustees and employers to take action.
■ On the Horizon: a timeline of some of the key future developments in pensions to help employers and trustees plan ahead.
If you would like further information about any of the issues raised in this edition of Pensions Round-Up, please get in touch with Cathryn Everest or your usual DLA Piper pensions contact. Contact details are at the end of this newsletter.
INTRODUCTION
02 | Pensions Round-Up – January 2017
CHAIR’S ANNUAL STATEMENT
In April 2015 a new requirement was introduced for trustees of schemes which provide money purchase benefits (subject to some exceptions) to prepare an annual statement regarding governance signed by their chair. The legislation introducing this requirement also states that where trustees have indicated that they have failed to prepare the statement or the Regulator is of the opinion that they have failed to do so, the Regulator must impose a financial penalty of at least £500 but no more than £2,000. The Regulator’s compliance and enforcement policy sets out a mechanism by which the penalty will generally be calculated which takes into account factors including the number of members, previous breaches and whether there is a professional trustee in place.
On 9 January the Regulator issued a press release reporting that it has issued its first fines against a number of master trust schemes for failing to complete a chair’s statement. The Regulator also published a regulatory intervention report providing further information about these cases.
■ In one case the Regulator identified the breach through its proactive engagement with master trusts. The Regulator imposed the maximum fine of £2,000 because the trustee is a professional trustee and there were no mitigating factors which would reduce the amount of the fine.
■ In the other case the trustee had failed to prepare a chair’s statement for three master trust schemes. The trustee notified the Regulator of the failures via the scheme return for each scheme and, having considered the factors set out in its compliance and enforcement policy, the Regulator imposed a total penalty of £3,020.70 for the three breaches.
ENFORCEMENT POWERS
A blog about the Regulator’s use of its enforcement powers (which was added to the Regulator’s website on 20 January) provides a further reminder of the importance of complying with the requirement to prepare a chair’s statement. The blog by the Regulator’s Executive Director of Frontline Regulation includes a section reporting that
the Regulator has issued financial penalties in relation to failing to complete the chair’s statement and the scheme return. The blog states that all trustees “need to be aware that not completing these necessary, basic tasks is a breach of the law and we will take this seriously”. The Regulator regards these failures as significant “because they are often a symptom of more serious failings”. The blog goes on to note that the Regulator will continue to educate those running schemes to make sure they are run to the high standards the Regulator expects but the Regulator will take action when they are not.
DC TRUST
On 27 January the Regulator published “DC trust: presentation of scheme return data 2016 – 2017” which is the eighth edition of its annual statistics on occupational DC trust-based pension schemes and memberships including DC memberships of hybrid dual-section schemes. The report is based on data provided by schemes on returns which the Regulator issued from July to December 2016 and related to the levy year 2015/16 or earlier. Key findings included the following.
■ Total memberships in DC schemes have overtaken DB schemes for the first time, with around 14.8 million memberships in DC schemes compared with 11.7 million in DB arrangements.
■ 55% of all private sector pension scheme members and 85% of active members are participants in DC schemes.
■ Membership has increased by 42% since last year and by over 300% since 2009.
THE PENSIONS REGULATOR
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LEGISLATION
PROVISION OF INFORMATION
Following a technical consultation published in November 2016, the Registered Pension Schemes (Provision of Information) (Amendment) Regulations 2017 were made on 10 January 2017 and come into force on 6 February 2017. The regulations introduce new provision of information requirements which apply where a scheme pays a lump sum death benefit which is subject to the 45% special lump sum death benefits charge to a trustee (other than a bare trustee). (Broadly speaking, the 45% charge applies where certain lump sum death benefits are paid; (i) to somebody who is not an individual or to somebody who is an individual but who is receiving the payment in another specified capacity, such as a trustee; (ii) in respect of a member who had reached age 75 at the date of death, or in respect of a member who had not reached age 75 but where the payment is made more than two years after the member’s death).
Under the new requirements: (i) the scheme must provide specified information to the trustee including the amount of the lump sum death benefit and the amount of the tax charge; and (ii) when the trustees make payments out of those funds to a beneficiary of the trust, they must pass certain information on to the beneficiary. This ensures that the beneficiary has the information they need in order to claim a refund of the excess tax paid by the scheme administrator over and above the tax at their marginal rate.
The regulations also make some minor amendments to the requirements for pension savings statements in light of the tapered annual allowance and the transitional rules for 2015/16.
PENSION SCHEMES BILL
The Pension Schemes Bill, which includes provisions to introduce an authorisation and supervision regime for master trusts, continued to progress through Parliament during January. The Third Reading of the Bill took place in
the House of Lords on 16 January and the Bill was then introduced to the House of Commons on 17 January and had its Second Reading there on 30 January. The Committee stage in the House of Commons is due to take place in February. The provisions in relation to master trusts contain a number of regulation-making powers and therefore some of the detail of the new regime is still to come. In terms of timing of the regulations, during the Second Reading on 30 January, the Secretary of State for Work and Pensions stated that it is anticipated that: the initial consultation to inform the regulations will take place in the autumn; this will be followed by a formal consultation on the draft regulations; the regulations will be laid during the summer of 2018; and the authorisation and supervision regime is likely to be commenced in full that year.
PENSION PROTECTION FUND
The Pension Protection Fund and Occupational Pension Schemes (Levy Ceiling and Compensation Cap) Order 2017 was laid before Parliament on 30 January 2017. The Order increases the following amounts from April 2017 to ensure that rises in average earnings are taken into account in their value: (i) the levy ceiling which controls the maximum amount of levy that the PPF can charge schemes; and (ii) the cap on PPF compensation.
LIFETIME ISA
The Savings (Government Contributions) Act 2017, which includes provisions on the Lifetime ISA, received Royal Assent on 16 January 2017. On the same day the Treasury issued a news story announcing Royal Assent and confirming that the Lifetime ISA will be available from April 2017. The Treasury explains: that under the Lifetime ISA, adults under 40 years of age will be able to save up to £4,000 a year, with the government giving them a 25% top up on their savings; and that the Lifetime ISA can be accessed to put towards a first home or once the account holder turns 60.
04 | Pensions Round-Up – January 2017
THE END OF CONTRACTING-OUT
HMRC published its latest Countdown Bulletin in relation to the end of contracting-out on 9 January. Issues covered in the Bulletin include the following.
■ HMRC reminds schemes that there will be no facility to raise queries through the Scheme Reconciliation Service (SRS) after October 2018, and that schemes have until December 2018 to complete the reconciliation.
■ An article about shared workspace database management in which HMRC explains that database management is important because failure to take the appropriate action means that it will be unable to archive completed requests and the database memory will reach its limit so that HMRC will be unable to add any further queries to the database. The article also provides information about the action that should be taken.
■ HMRC explains that it is coming to the end of a six month phase of SRS query automation and that during this time it has captured over one million queries, developed automated solutions and automatically cleared over 800,000 queries (87%). HMRC also sets out the steps to follow if schemes would like to take advantage of the automated responses available and reports on its plans for the next phase of automation which runs from January 2017.
On 23 January HMRC updated its online information about the GMP Checker to reflect that the service is no longer a beta version and is now live. The GMP Checker can be used to obtain a member’s GMP calculation and administrators can check their member’s record against the information that HMRC holds. HMRC explains that administrators can either get an instant calculation for one member at a time or request a bulk calculation by uploading a template and they will then be sent an e-mail when the bulk calculation is ready.
FLEXIBLE PAYMENT STATISTICS
On 25 January HMRC published updated statistics about flexible payments which shows that in the fourth quarter of 2016, 393,000 payments were made to 162,000 individuals and the total value of payments was £1.56 billion. The figures show that since the flexibilities were introduced on 6 April 2015, 549,000 people have flexibly accessed £9.2 billion through over 1.5 million payments, although it is worth noting that the numbers for 2015/16 are not comprehensive because reporting was optional for 2015/16 but compulsory from April 2016.
OVERSEAS PENSION SCHEMES
In the December 2016 edition of Pensions Round-Up, we reported on draft legislation making changes to the legislation on overseas pensions. On 3 January HMRC published an updated version of the draft accompanying guidance which contains a new chapter looking at the taxation of non-UK registered schemes. This new part of the draft guidance explains that a chapter to be inserted into the Finance Act 2004 (which is currently contained in draft clauses for the Finance Bill 2017 which were published for technical consultation on 5 December) will, with effect from 6 April 2017, specify how the tax rules apply to non-UK registered schemes, and that this will replace the current non-statutory advice in the Pensions Tax Manual about how the legislation applies to non-UK-based registered schemes. The draft guidance provides an overview of this issue and has sections on UK-relieved funds, lifetime allowance provisions, annual allowance provisions, and taxable property provisions.
HMRC
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PUBLIC SERVICE PENSION SCHEMES
CAP ON PUBLIC SECTOR EXIT PAYMENTS
In 2015 HM Treasury issued a consultation on proposals to introduce a £95,000 cap on the total value of exit payments made to employees in the public sector, with the cap to apply to all forms of exit payment including the cost to the employer of funding early access to unreduced pensions. The Enterprise Act 2016 sets out the framework for the cap, which largely takes the form of regulation-making powers including the power to make regulations to amend public service pension schemes. Regulations were made on 24 January which bring these provisions into force on 1 February 2017 meaning that regulations containing the detail of the provisions in relation to the cap can now be made.
OBJECTIVE JUSTIFICATION
In January the Employment Tribunal issued a judgment concerning a claim by 210 judges in relation to the new judicial pension scheme (“NJPS”) introduced in April 2015. The NJPS provides less valuable retirement benefits than the judicial pension scheme (“JPS”) of which the claimants were members before 1 April 2015. The claim relates to transitional provisions which permit certain judges to remain members of the JPS either until retirement (full protection members) or until the end of a period of tapered protection (tapered protection members). The status of a full protection member and of a tapered protection member depends solely upon a judge’s date of birth and therefore his or her age. The claimants allege that these transitional provisions constitute unlawful discrimination. The respondents argued that the less favourable treatment could be objectively justified (that is, it is a proportionate means of achieving a legitimate aim) and was not therefore unlawful. The judgment considers the question of objective justification in relation to the claims of direct age discrimination but the parties agreed that the claims in relation to indirect race discrimination and indirect sex discrimination/equal pay also depend on the answer to the same question. The Tribunal concluded that the respondents had failed to show that their treatment of the claimants was a proportionate means of achieving a legitimate aim, with its reasons including the following.
■ The aim of the transitional provisions was stated to be to protect those closest to retirement from the financial effects of pension reform. The Tribunal noted that in the
previous case authorities to which it had been referred, a wide range of aims had been examined and found legitimate and that in each case a broad objective had been identified and expressed “in terms going beyond the age per se of the group to be more, or less, favourably treated”. In contrast, in this case, the aim identifies an age group to be protected but does not identify any wider underlying aim. In addition, the evidence showed that the older judges are, the less adversely they are affected by the reforms.
■ The respondents had also referred to the aim of consistency with the reforms introduced for other public service schemes. The Tribunal noted that the transitional provisions are one of very few respects in which the NJPS is consistent with other reformed public service schemes and concluded that, beyond general advantages, the respondents had not explained why there was a need to pursue the aim of consistency in this one respect.
■ In relation to the requirement of proportionality, the Tribunal stated that it had to consider whether the chosen means are both appropriate and reasonably necessary to achieve the aim. The Tribunal concluded that even if, contrary to its findings, the respondents had been able to demonstrate a legitimate aim, the transitional provisions did not meet the requirement to be proportionate. For example, it noted that the transitional provisions initially protected around 85% of serving judges, many of whom suffered only minor adverse effects from the reforms, whilst leaving the unprotected judges exposed to a severe adverse impact. The Tribunal thought that the transitional provisions were not a reasonably necessary means of achieving the aims as they go beyond what was necessary to achieve consistency or to protect those closest to retirement.
The discussion in this judgment may be of interest to schemes considering the issue of objective justification even if not in relation to provisions identical to those in this case.
06 | Pensions Round-Up – January 2017
TPAS – PENSION SCAMS
In January The Pensions Advisory Service (TPAS) launched an online pension scam guidance tool. TPAS states that the tool will “go a way to helping those who may initially be too embarrassed or worried to ask for help”. The tool can be accessed on the TPAS website and allows users of it to self-serve and be given next steps, depending on their position, which include talking to TPAS. TPAS states that it also wanted to provide the industry with “a tool to which they can direct their savers, helping to disrupt the scammers throughout the process but especially at the point of a questionable transfer”.
FINANCIAL CONDUCT AUTHORITY
The Financial Conduct Authority (FCA) published two alerts relevant to pensions on 24 January.
■ An alert (primarily aimed at pension scheme operators but also noted to be of interest to financial advisers and those providing discretionary fund management) about
the risk of “smarter scams” which highlights some of the risks arising from authorised firms failing to carry out appropriate due diligence on investment offerings. It reports that the FCA has seen scams evolve to become increasingly sophisticated and states that the reason for this evolutionary process appears to be to obscure the nature of the ultimate underlying investment.
■ An alert highlighting the FCA’s requirements when firms provide advice on pension transfers. The FCA states that it is aware that some firms have been advising on pension transfers or switches without considering the assets in which their client’s funds will be invested. It is concerned that consumers receiving this advice are at risk of transferring into unsuitable investments or being scammed. The alert sets out the FCA’s expectations and some considerations for firms providing pension transfer advice in specific circumstances including where advice is required under the Pension Schemes Act 2015 in relation to a DB to DC transfer or on pension transfers to overseas schemes.
OTHER NEWS
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GMP REVALUATION
In this article we provide a reminder of an upcoming deadline of 5 April 2017 for trustees to make amendments to their rules on revaluation of Guaranteed Minimum Pensions (GMPs).
Background
Prior to the introduction of the new State Pension and the end of contracting-out on 6 April 2016, legislation provided that revaluation of GMPs during contracted-out service would be in line with earnings (section 148 orders) but that once members leave contracted-out employment, the scheme could choose to use fixed rate revaluation instead.
In order to prevent the end of contracting-out from triggering a change to fixed rate revaluation on 6 April 2016, the legislation was amended. It now provides that the relevant point from which schemes may use fixed rate revaluation instead of revaluation in line with earnings is when the member leaves pensionable service. The previous position was saved for those who left contracted-out employment before 6 April 2016 and therefore this issue only arises for schemes that were open to accrual after 5 April 2016.
This change to the legislation meant that schemes needed to decide whether they would: (i) apply fixed rate revaluation from the date that pensionable service ends; or (ii) revalue in line with earnings. However, in February 2016 the DWP reported on concerns that some schemes with restrictive rules would not be able to choose to apply fixed rate revaluation.
There is also concern that if scheme rules refer to fixed rate revaluation from the date contracted-out employment ends and a rule amendment cannot be made, it could mean that members will be entitled to the better of fixed rate revaluation and revaluation in line with earnings from 6 April 2016.
The power to modify by resolution
The Occupational and Personal Pension Schemes (Modification of Schemes – Miscellaneous Amendments) Regulations 2016 were made in February 2016 and came
into force on 6 April 2016. These regulations allow trustees to modify their scheme by resolution in order to choose to apply fixed rate revaluation from the day pensionable service ends for those who cease to contract-out on 6 April 2016. The modifications made by resolution can have retrospective effect back to 6 April 2016 and there is no requirement to consult with members before exercising the power. Any such resolution must be passed before 6 April 2017 and therefore trustees now have less than two months to use this power.
Action points
Whilst the resolution-making power rests with trustees, given that this issue relates to the calculation of benefits, employers may also want to consider engaging with the trustees of their scheme in relation to it. Trustees and employers will need to decide whether they want to apply fixed rate revaluation from the date pensionable service ends and review their rules to see whether any amendments will need to be made to reflect their decision and to remove the risk of members being entitled to the better of fixed rate revaluation and revaluation in line with earnings. Trustees and employers will also need to consider how any such amendments should be made as it may not be possible to make amendments using the scheme amendment power. Any rule amendments to be made using the resolution-making power will need to be made by 5 April 2017 at the latest.
Trustees and employers should consider seeking legal advice as soon as possible regarding whether any amendments need to be made to their scheme rules in order to ensure that this issue is dealt with by 5 April 2017.
THE END OF CONTRACTING-OUT
08 | Pensions Round-Up – January 2017
2017 DEVELOPMENTS
The next section of this newsletter contains our usual on the horizon timeline of some key future developments to help employers and trustees plan ahead. In this section we look in more detail at some of the key developments expected this year.
Contracted-out rights. Amendments are due to come into force on 6 April 2017 in relation to administering accrued contracted-out rights including: (i) clarification of when certain provisions about revaluation of GMPs after a transfer apply; and (ii) a change to the fixed rate of revaluation. Schemes will need to ensure that they are ready to administer any contracted-out rights in line with the changes. The consultation on the draft regulations closed on 15 January 2017.
Pensions advice allowance. On 6 April 2017 provisions are expected to be introduced which will allow people to take up to £500 from their DC pension pot tax-free to redeem against the cost of financial advice. Schemes will need to consider whether they will permit such withdrawals and if so make any necessary updates to their rules and processes.
Overseas pensions. A consultation published in December 2016 proposed changes to the conditions to be an ‘overseas pension scheme’ and a ‘recognised overseas pension scheme’. The final form of the regulations has not yet been published. These changes are relevant to the question of whether an overseas pension scheme meets the criteria to be a QROPS such that a transfer to it will be an authorised payment. In advance of the changes coming into force, schemes will need to review their processes for overseas transfers and any outstanding transfer requests.
Money purchase annual allowance. The money purchase annual allowance (which applies when a member has accessed their benefits flexibly and wishes to make further DC contributions) will be reduced from £10,000 to £4,000 from April 2017. A consultation was published on the detail of this proposal in November 2016 and the legislative changes to give effect to it are expected to be included in the Finance Bill 2017.
21st century trusteeship. In December 2016 the Pensions Regulator published the response to its Discussion Paper on 21st century trusteeship and governance. The Paper explains the steps that the Regulator intends to take to drive up standards of governance and administration including an education campaign which is expected to start in spring 2017. Whilst the Regulator is not seeking to impose new standards, the Discussion Paper and response provide a useful reminder for trustees to consider their governance and administration processes and whether any improvements are needed. It will also be useful for trustees to consider their scheme in light of any new guidance issued as part of the education campaign.
Cap on early exit charges. In November 2016 the DWP confirmed that it intends: (i) to cap early exit charges for members of occupational pension schemes at 1% for existing members and 0% for new members; and (ii) to legislate to ensure that where the existing contract or the rules explicitly specify that an early exit charge will be applied and this is below 1%, it cannot be increased. A consultation on draft regulations is expected in early 2017 with a view to them coming into force in October 2017. As an initial step, trustees should check whether any such charges apply in their scheme and, if so, whether they exceed the proposed cap.
Pension scams. On 5 December the DWP and HM Treasury published a consultation on a package of measures aimed at tackling pension scams including limiting the statutory right to transfer to some occupational pension schemes. It is not known when any changes will be made (although next steps are expected to be announced at the Budget) but trustees should be aware that they may need to update their transfer processes.
General Data Protection Regulation. A new General Data Protection Regulation comes into force in May 2018 and it would be useful for trustees to start their preparations for compliance during 2017. We will be publishing a Pensions Alert with further information about these changes in due course.
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10 | Pensions Round-Up – January 2017
ON THE HORIZONON THE HORIZON
DATE DEVELOPMENT
Unknown The reforms in relation to Defined Ambition, Collective Benefits and automatic transfers of small DC pots will be revisited once the market has had time and space to adjust to the other reforms underway.
A November 2016 consultation on a proposed methodology for equalising pensions for the effect of GMPs closed on 15 January 2017 but the date that the response and any final form documents will be published is not known.
In February 2016 it was stated that a new requirement would be introduced in the summer for trust-based schemes to report regularly on their performance in processing transfers but no further detail has yet been published in relation to this.
2017 The Government intends to publish a Green Paper on DB schemes.
The Pension Schemes Bill 2016-17 is progressing through Parliament. It contains provisions in relation to the regulation of master trusts and a regulation-making power to support the plans to introduce a cap on early exit charges and extend the ban on member-borne commission payments. Consultation on the charges provisions is expected in early 2017.
A review of automatic enrolment will take place in 2017. A report setting out policy recommendations is expected towards the end of 2017.
Following a December 2016 call for evidence, a consultation is expected on bulk transfers of DC pensions without member consent.
Spring 2017 Following its Discussion Paper on 21st century trusteeship and governance, an education campaign by the Regulator is expected to start.
A consultation is expected in relation to the PPF levy rules for the third triennium.
8 March 2017 The Spring Budget will take place. The final contents of the Finance Bill and next steps on the consultation on pension scams are expected to be announced.
April 2017 It is expected that a pensions advice allowance will be introduced allowing members to make specified withdrawals from their DC pension pot to redeem against the cost of financial advice.
The money purchase annual allowance is expected to be reduced to £4,000.
Regulations making amendments to the legislation on administering accrued contracted-out rights are expected to come into force. (There are some issues still to be addressed but changes on these issues is not expected before autumn 2017).
Changes to the legislation on overseas pensions are expected to come into force.
Second quarter of 2017
Following a consultation published in October 2016, the FCA is expected to publish rules aimed at standardising the disclosure of transaction costs incurred by pension investments.
October 2017 The cap on early exit charges for occupational pension schemes is expected to come into force. (For contract-based schemes the relevant date is 31 March 2017).
End of 2017 The transitional period in which employers and schemes may continue to use the VAT treatment in VAT Notice 700/17 ends on 31 December 2017.
6 April 2018 The lifetime allowance is due to be indexed annually in line with CPI.
May 2018 The new EU General Data Protection Regulation will apply.
2019 Member States must transpose the IORP II Directive into national law by 13 January 2019.
The Government will ensure the industry designs, funds and launches a pensions dashboard by 2019. A prototype is expected by March 2017.
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CONTACT DETAILS
Ben MillerPartner, Liverpool T +44 (0)151 237 4749 [email protected]
Claire BellPartner, Manchester T +44 (0)161 235 4551 [email protected]
Tamara CalvertPartner, London T +44 (0)20 7796 6702 [email protected]
Jeremy HarrisPartner, Manchester T +44 (0)161 235 4222 [email protected]
Vikki MassaranoPartner, Leeds T +44 (0)113 369 2525 [email protected]
Kate PaynePartner, Leeds T +44 (0)113 369 2635 [email protected]
Matthew SwynnertonPartner, London T +44 (0)20 7796 6143 [email protected]
David WrightConsultant, Liverpool T +44 (0)151 237 4731 [email protected]
Cathryn EverestProfessional Support Lawyer, London T +44 (0)20 7153 7116 [email protected]
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