(General Regulatory Chamber)
Pensions
B e f o r e :
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M ROSE CONSTRUCTION LTD |
Appellant |
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- and - |
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THE PENSIONS REGULATOR |
Respondent |
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Crown Copyright ©
Decision: The appeal is Allowed I direct that the penalty is varied to £0.
"Take immediate action: your automatic enrolment duties
The Pensions Regulator is responsible for ensuring that all employers comply with workplace pension law. Under the Pensions Act 2008, every employer in the UK must put certain staff in a workplace pension scheme and pay into it. This is called "automatic enrolment"
….
According to our records your 'duties start date' was 1 July 2023, which is when your first member of staff started working for you"
"Urgent action is required - your declaration deadline was 1 December 2023
I wrote to you recently to remind you to complete your declaration of compliance but according to our records you have still not completed it. You need to do this to tell us how you have met your duties.
When completing your declaration, make sure everyone who worked for you on 1 July 2023 is included in the information you provide. To complete your declaration go to:….."
"We are authorized agent of above mentioned client.
During that period, our client encountered personal difficulties stemming from a family bereavement and the ramifications of the Covid-19 pandemic. These challenges impeded their capacity to promptly enrol and submit the required re-declaration as a first-time enrollee. We hope you can understand the circumstances that our client faced.
Consequently, we are pleased to inform you that we have now successfully completed enrolment with The Pensions Regulator.
Furthermore, apart from the aforementioned information, we have replied to your initial communication and are drafting this letter as a subsequent follow-up. We apologize for the delay, which was caused by our client's circumstances, and respectfully request your understanding in waiving the £400 fine.
We want to reassure you that steps have been implemented to prevent any future occurrences of such delays."
"It is irrelevant that the underlying duties may have been met in this case, the Declaration of Compliance was not, and this is an important statutory duty"
Statutory framework
40 Fixed penalty notices
(1) The Regulator may issue a fixed penalty notice to a person if it is of the opinion that the person has failed to comply with—
(a) a compliance notice under section 35,….
(4) The penalty—
(a) is to be determined in accordance with regulations, and …
(5)A fixed penalty notice must—
(a) state the amount of the penalty;….
(g) notify the person to whom the notice is issued of the review process under section 43 and the right of referral to a tribunal under section 44.
43 Review of notices
(1) The Regulator may review a notice to which this section applies—
(a) on the written application of the person to whom the notice was issued, or
(b) if the Regulator otherwise considers it appropriate.
(2) This section applies to—…
(d)a fixed penalty notice issued under section 40;…
(4) On a review of a notice, the effect of the notice is suspended for the period beginning when the Regulator determines to carry out the review and ending when the review is completed.
(5) In carrying out a review, the Regulator must consider any representations made by the person to whom the notice was issued.
(6) The Regulator's powers on a review include power to—
(a) confirm, vary or revoke the notice;
(b) substitute a different notice.
44 References to First-tier Tribunal or Upper Tribunal
(1) A person to whom a notice is issued under section 40 or 41 may, if one of the conditions in subsection (2) is satisfied, make a reference to the Tribunal in respect of—
(a)the issue of the notice;
(b)the amount of the penalty payable under the notice.
(2) The conditions are—
(a) that the Regulator has completed a review of the notice under section 43;
(b) that the person to whom the notice was issued has made an application for the review of the notice under section 43(1)(a) and the Regulator has determined not to carry out such a review.
(3) On a reference to the Tribunal in respect of a notice, the effect of the notice is suspended for the period beginning when the Tribunal receives notice of the reference and ending—
(a)when the reference is withdrawn or completed, or…
(4) For the purposes of subsection (3), a reference is completed when—
(a) the reference has been determined,
(b) the Tribunal has remitted the matter to the Regulator, and
(c) any directions of the Tribunal for giving effect to its determination have been complied with.
Fixed penalty notices
"12 Where the Regulator issues a fixed penalty notice to a person under subsection (1) or (2) of section 40 of the Act, the penalty is £400."
Consideration
The Respondent submits that the appeal grounds do not amount to a reasonable excuse for the failure to comply with the requirements of the Compliance Notice or indicate that the Respondent has acted unfairly in any way.
Signed Hughes
Date: 4 March 2025