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First-tier Tribunal (General Regulatory Chamber)


You are here: BAILII >> Databases >> First-tier Tribunal (General Regulatory Chamber) >> Omar Exotic Foods Ltd v Pensions Regulator [2025] UKFTT 550 (GRC) (20 May 2025)
URL: http://www.bailii.org/uk/cases/UKFTT/GRC/2025/550.html
Cite as: [2025] UKFTT 550 (GRC)

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Neutral Citation Number: [2025] UKFTT 550 (GRC)
Case Reference: FT/PEN/2024/0241

First-tier Tribunal
(General Regulatory Chamber)
Pensions

Decided without a hearing
Decision Given On: 20 May 2025

B e f o r e :

JUDGE WATTON
____________________

Between:
OMAR EXOTIC FOODS LIMITED
Appellant
- and -

THE PENSIONS REGULATOR
Respondent

____________________


____________________

HTML VERSION OF DECISION
____________________

Crown Copyright ©

    Decision: The appeal is dismissed, and the reference is remitted to the Regulator without directions. The penalty notice is confirmed.

    REASONS
  1. This is a reference to the Tribunal by the Appellant in respect of a £400 Fixed Penalty Notice ("FPN") 157177746144, issued by the Respondent on 7 June 2024.
  2. The parties agreed that the reference could be determined without a hearing and as required by Rule 32 I was satisfied I could properly determine the issues without a hearing.
  3. Factual background

  4. The Appellant is an employer with specified duties concerning enrolment in pension schemes. The Appellant was required to declare its compliance with those duties to the Respondent by 5 December 2023 under the relevant statutory framework. It is common ground that it failed to do so. The Respondent extended the deadline for compliance to 19 March 2024 and says it sent a welcome pack confirming this in January 2024. The Respondent says it extended the deadline a further time in a warning letter dated 27 March 2024.
  5. The Respondent says that the Appellant failed to comply with the 10 April 2024 deadline and so the Respondent issued a Compliance Notice ('CN') to the Appellant on 11 April 2024. The Appellant did not comply with the CN by the deadline of 22 May 2024, the Appellant says this is because it did not receive the CN. As the Appellant had not complied the Respondent issued the FPN to the Appellant on 7 June 2024.
  6. On 10 June 2024 the Appellant completed its re-declaration of compliance and requested a review, stating that it had not received any letter to make the declaration and had only received a penalty letter. The Respondent upheld the decision on 18 June 2024.
  7. Legal framework

    Duties of the employer

  8. The Pensions Act 2008 ("the 2008 Act") requires employers to enrol "job holders" in occupational or workplace pension schemes.
  9. Employers have additional duties under the 2008 Act. Under section 11, an employer subject to automatic enrolment duties must give prescribed information to the Regulator.
  10. This information is set out in Regulation 3 of the Employers' Duties (Registration and Compliance) Regulations 2010 ("the 2010 Regulations") and includes the employer's details, information about its workers and information about the occupational or personal pension scheme it uses for automatic enrolment purposes.
  11. The declaration of compliance must be provided within five months of the staging date or duty start date (Regulation 3(1)). The employer must file a re-declaration of compliance within five months after the third anniversary of the staging date. The employer then must file further re-declarations within five months after the third anniversary of the previous automatic re-enrolment date (Regulation 4(1)).
  12. Powers of the Regulator

  13. The Pensions Regulator must ensure employers' compliance with the 2008 Act, so the legislation gives it specified powers to do so, including:
  14. a. Section 35: the Regulator may issue a compliance notice if an employer has contravened one or more of the employer duties. A compliance note requires an employer to take action, usually by a specified date.
    b. Section 40: the Regulator may issue a fixed penalty notice for failure to comply with various provisions of the 2008 Act, including sections 35 and 37. This requires the employer to pay a penalty within a specified period. The penalty is £400 and is set by the 2010 Regulations.

    Presumption of service

  15. Section 303(6)(a) of the Pensions Act 2004 ("the 2004 Act") and regulation 15(4) of the 2010 Regulations create a presumption that notices are received by the employer when addressed to them and sent to their registered office or principal office address. However, that presumption is capable of being rebutted on the basis of contrary evidence: Philip Freeman Mobile Welders Ltd v Pensions Regulator [2022] UKUT 62 AAC
  16. The role of the Tribunal

  17. Section 44 of the 2008 Act allows a person to make a reference to the Tribunal in respect of the issue of a penalty notice or the amount of the penalty payable under the notice. Section 103(3) of the 2004 Act allows the Tribunal to consider any relevant evidence, even where it was not available to the Regulator. Section 103(4) provides that on a reference the Tribunal must determine what (if any) is the appropriate action for the Regulator to take. The role of the Tribunal is to make its own decision on the appropriate action to take, having regard to all the circumstances before it.
  18. Section 43 of the 2008 Act provides such a reference is only permitted where the Regulator has reviewed the notice or if an application for a review has been made and the Regulator has determined not to carry out a review.
  19. The parties' submissions

    The Appellant

  20. The Appellant's grounds are brief and simply say that the Appellant would like the penalty removed as it was its first year of compliance; it would like a warning instead. It says this was its first year as a registered employer and it did not receive the letters. The Appellant also states it is a small business selling fruit and vegetables at a market stall and the owner has six young children. The declaration of compliance has now been made and the Appellant says it will meet its obligations in future.
  21. The Respondent

  22. The Respondent says that the Appellant has failed to rebut the presumption of receipt of the CN. It also submits that the Appellant has no reasonable excuse for failing to comply with its duties. It had taken steps to inform the Appellant of its duties through a Welcome Pack and Warning Letter but the Appellant failed to act. It has no discretion over the level of penalty and eventual compliance is not a reason to revoke the penalty.
  23. Findings

    Was the Compliance Notice correctly served on the Appellant?

  24. The law says I must presume that the CN was received by the Appellant as it was addressed to the correct business at the correct address. However, that is a rebuttable presumption. The CN was addressed to 19 Curzon Crescent, Barking, IG11 0JY. This is the same address as the FPN was sent to, and indeed the same address used on the appeal form. It is the address recorded for the Appellant on Companies House since 5 September 2022. It is difficult to understand why the PDF of that record in the bundle redacts the address on both page 74 and 75. However, the bundle also provides a link to the Appellant's Companies House entry, so I have checked the address history from the online record.
  25. The Appellant has not provided any evidence in relation to not receiving the notice beyond simple assertion. I accept that it is difficult for the Appellant to prove a negative but the Appellant has not for example explained any difficulties it has had with receiving post, or disputed that the address used was correct. I am not satisfied that the Appellant has rebutted the presumption of receipt, and so I am satisfied that the CN was correctly served on the Appellant.
  26. Does the Appellant have a reasonable excuse for failing to comply with the compliance notice?

  27. The Appellant mentions this was its first year of compliance. I take this to mean it was either unaware of or inexperienced in how to comply with its duties. However, I have found that the Appellant did receive the CN, which warned it of the consequences of not paying. I am also satisfied that the Appellant received the letters from the Respondent in the bundle which explained the Appellant's obligations dated January 2024 and 27 March 2024. They were sent to the Appellant's registered address and set out what the Appellant needed to do to comply.
  28. In addition to the CN, this provided the Appellant with extended deadlines to comply before the CN was issued. I consider this to be more than sufficient notification of the duties to a new or inexperienced employer. I therefore do not accept that this is a reasonable excuse.
  29. The Appellant also states that the owner has six young children and the business is small, so the FPN will have a significant impact on both the professional and personal circumstances of its owner. I am sympathetic to the Appellant's circumstances, but they do not amount to a reasonable excuse. The level of the fine is set in regulations approved by Parliament and partly functions as a deterrent against non-compliance. The fact that the compliance declaration was eventually made is also not a reasonable excuse, compliance was still late.
  30. Having considered all the circumstances of the case, the Appellant does not have a reasonable excuse for non-compliance.
  31. Conclusion

  32. The reference is dismissed. I remit the matter to the Regulator without directions and confirm the Penalty Notice. The Appellant may wish to contact the Respondent to discuss payment options, as invited to do so at paragraph 44 of the Response.
  33. Signed Judge Watton

    Date: 18 May 2025

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