First-tier Tribunal (General Regulatory Chamber)

Neutral Citation Number: [2023] UKFTT 94 (GRC)

 

Case Reference: PEN/2022/0190

FIRST-TIER TRIBUNAL

GENERAL REGULATORY CHAMBER

PENSIONS REGULATION

 

Heard: by determination on the papers

Heard on: 1 February 2023

Decision given on: 1 February 2023

Before: Judge Alison McKenna

 

 

Between:

 

 

 

	OLIVER’S ITALIAN RESTAURANT AND WINE BAR LIMITED	Appellant
	- and -
	THE PENSIONS REGULATOR	Respondent

 

 

DECISION

 

 

1.            The reference is dismissed, and the matter is remitted to the Regulator.  The Fixed Penalty Notice is confirmed.

REASONS

Background

2.            By this reference Oliver’s Italian Restaurant and Wine Bar Limited (“the Employer”) challenges a fixed penalty notice issued by the Regulator on 12 September 2022.

3.            The Penalty Notice was issued under s. 40(1) of the Pensions Act 2008.  It required the Employer to pay a penalty of £400 for failing to comply with the requirements of a Notice of Compliance dated 15 July 2022, which required the Employer to provide the Regulator with information by 25 August 2022.  This Notice was not complied with by the deadline, although I understand that compliance has subsequently been achieved.

4.            The Regulator has completed a review of the decision to impose the Penalty Notice and informed the Employer on 22 September 2022 that the decision was confirmed. The Employer referred the matter to the Tribunal on 22 September 2022.  

5.            The parties and the Tribunal agreed that this matter was suitable for determination on the papers in accordance with rule 32 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, as amended. The Tribunal considered all the evidence and submissions made by both parties in a bundle numbered page 1 to 109.

The Law

6.            The Pensions Act 2008 imposed a number of legal obligations on employers in relation to the automatic enrolment of certain “jobholders” into occupational or workplace personal pension schemes.  The Pensions Regulator has statutory responsibility for securing compliance with these obligations and may exercise certain enforcement powers, including issuing a Notice of Compliance and, if this is not complied with, issuing a Fixed Penalty Notice. 

7.            Under s. 44 of the 2008 Act, a person who has been issued with a Fixed Penalty Notice may make a reference to the Tribunal provided an application for review has first been made to the Regulator. The role of the Tribunal is to make its own decision on the appropriate action for the Regulator to take, taking into account the evidence before it.  The Tribunal may confirm, vary or revoke a Fixed Penalty Notice and when it reaches a decision, must remit the matter to the Regulator with such directions (if any) required to give effect to its decision.

Submissions

8.            In the Notice of Appeal dated 22 September 2022, the Employer relied on grounds of appeal that the Notice of Compliance dated 13 July 2022 was not received. It is further submitted that the Employer needed to make no change to its information, which was provided to the Regulator, albeit late.  It is also submitted that this is the Employer’s first infringement. It is stated that its contact details have now been amended so that its accountant will receive all notices, and requests that the Penalty be reviewed and for the Tribunal to ‘scrap it to nil’.

9.            The Regulator has responded that all notices were issued to the Employer’s registered office address, which is the same address used in the Employer’s Notice of Appeal and on the Fixed Penalty Notice itself. No notices were returned undelivered. It is submitted that the Employer has not provided any evidence which is capable of rebutting the statutory presumption of service in s. 303(6) (a) of the Pensions Act 2004 and regulation 15 (4) of the Employers Duties (Registration and Compliance) Regulations 2010.

10.         It is further submitted that this is not the Employer’s first infringement and that changes were required as a result of the new information belatedly provided. It was submitted that the Employer has failed to establish a reasonable excuse for its non-compliance. In the circumstances, it is submitted that the Fixed Penalty Notice was the appropriate step to take. 

 

Evidence

11.         The Regulator has provided the Tribunal with copies of all relevant correspondence, addressed to the Employer at its registered office.

12.         The Employer has not provided the Tribunal with any evidence to support its case that the Notice of Compliance was not received.

Conclusion

13.         I am satisfied that the Employer had a duty to comply with the requirements of the Notice of Compliance but failed to do so.  I am satisfied that all the statutory notices were issued to the correct address and thus that the Regulator is entitled to rely on a presumption of service. 

14.         In this case, no evidence to support the non-receipt of the Notice has been presented, such as evidence of local postal disruption.  It follows that the Employer’s case rests on a bare assertion. I conclude that an assertion is insufficient to rebut the statutory presumption of service of documents sent to the Employer’s registered address.

15.         As to the other grounds of appeal, belated compliance with legal duties cannot amount to a reasonable excuse for the original non-compliance. I find that no reasonable excuse for non-compliance has been established in this case.  

16.         In all the circumstances, I determine that the Fixed Penalty Notice was the appropriate action for the Regulator to take in this case.  I remit the matter to the Regulator and confirm the Fixed Penalty Notice.  No directions are necessary.

(Signed)

 

JUDGE ALISON MCKENNA                                             DATE: 1 February 2023

 

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