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First-tier Tribunal (General Regulatory Chamber)


You are here: BAILII >> Databases >> First-tier Tribunal (General Regulatory Chamber) >> DEA Building Contractors Ltd v Pensions Regulator [2025] UKFTT 551 (GRC) (20 May 2025)
URL: http://www.bailii.org/uk/cases/UKFTT/GRC/2025/551.html
Cite as: [2025] UKFTT 551 (GRC)

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Neutral Citation Number: [2025] UKFTT 551 (GRC)
Case Reference: FT/PEN/2024/0314

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:
DEA BUILDING CONTRACTORS 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") 103878628066, issued by the Respondent on 4 July 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 re-declare its compliance with those duties to the Respondent by 2 April 2024 under the relevant statutory framework. It is common ground that it failed to do so.
  5. The Respondent says it issued a Compliance Notice ('CN') to the Appellant on 9 May 2024. It is not disputed that the Appellant did not comply by the deadline of 19 June 2024, though the Appellant says this is because it did not receive the CN. As the Appellant had not complied, the Respondent issued a FPN to the Appellant on 4 July 2024.
  6. On 9 July 2024 the Appellant completed its re-declaration of compliance and requested a review, stating that it had not received any reminders or notifications about non-compliance. The Respondent upheld the decision on 13 July 2024. The Appellant's reference to the Tribunal was received in time, on 5 August 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 of appeal state the Appellant has always been diligent about complying with its duties. The Appellant says it has not received any reminders about potential non-compliance and that the Respondent should have been more proactive. When it received the FPN it took swift corrective steps.
  21. The Respondent

  22. The Respondent says the CN was issued to the correct registered address of the Appellant and therefore I should presume receipt. The Respondent says it sent multiple reminders by post and email, though it was not obliged to. The Respondent says the Appellant has no reasonable excuse for failing to comply with its obligations.
  23. Findings

    Was the Compliance Notice correctly served on the Appellant?

  24. There is a presumption in favour of receipt of notices that are addressed correctly and sent to the correct business address. In this case there is insufficient evidence to rebut the presumption. When reviewing the CN and the Companies House evidence in the bundle the CN was addressed to the correct business, at the correct address. The Appellant does not argue that the address was in any way deficient. There is no evidence from the Appellant about any difficulties with receiving post at this address. The Appellant's statement that it did not receive the notice is a bare assertion and not capable of rebutting the presumption alone.
  25. Does the Appellant have a reasonable excuse for failing to comply with the compliance notice?

  26. The Appellant has not made any submissions that could amount to a reasonable excuse, other than saying it takes its obligations seriously. Looking at the documents provided, I cannot identify any other evidence of a reasonable excuse. The Appellant was sent two reminders by post. The first and second were in July 2023 and January 2024. These two letters were addressed to the Appellant at its previous address at 133 Creek Road. This was the correct address at the time based on the Companies House records supplied in the bundle.
  27. The final reminder was issued on 22 April 2024 and was also sent to the 133 Creek Road address. However, according to Companies House data the Appellant's address had changed to 38 Corbridge Court on 6 April 2024. I accept that the Appellant likely did not receive this letter.
  28. The Appellant was also sent reminders by email on 8 June 2023, 6 September 2023, 6 December 2023, 2 January 2024, 6 February 2024, 15 March 2024, 19 March 2024, 26 March 2024, 31 March 2024 and 2 April 2024. These were sent to a Gmail email address. The Appellant has not explained whether this email address was in use.
  29. Having regard to all the circumstances of the case I am not satisfied that the Appellant has any reasonable excuse for failing to comply with the CN. The Respondent is not required to remind the Appellant of its legal obligations but repeatedly did so. Even if the 6 April 2024 letter was issued to an incorrect address, this is not capable of amounting to a reasonable excuse.
  30. Conclusion

  31. The reference is dismissed. I remit the matter to the Regulator without directions and confirm the Penalty Notice.
  32. Signed Judge Watton

    Date: 18 May 2025

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