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First-tier Tribunal (General Regulatory Chamber)


You are here: BAILII >> Databases >> First-tier Tribunal (General Regulatory Chamber) >> Spa-Tax Taxis Ltd v Pensions Regulator [2025] UKFTT 553 (GRC) (20 May 2025)
URL: http://www.bailii.org/uk/cases/UKFTT/GRC/2025/553.html
Cite as: [2025] UKFTT 553 (GRC)

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Neutral Citation Number: [2025] UKFTT 553 (GRC)
Case Reference: FT/PEN/2024/0119

First-tier Tribunal
(General Regulatory Chamber)
Pensions

Heard by Cloud Video Platform
Heard on: 9 January 2025
Decision Given On: 20 May 2025

B e f o r e :

JUDGE WATTON
____________________

Between:
SPA-TAX TAXIS LTD
Appellant
- and -

THE PENSIONS REGULATOR
Respondent

____________________

Representation:
For the Appellant: Roland Shorcott, payroll manager (James Barry Accountants)
For the Respondent: Natasha Jones

____________________

HTML VERSION OF DECISION
____________________

Crown Copyright ©

    Decision: (1) I extend time to bring the appeal. (2) 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") 124010631909, issued by the Respondent on 8 December 2023.
  2. The hearing was held by CVP. The Tribunal considered the bundle prepared by the Respondent and the submissions made by both parties.
  3. Factual background

  4. The Appellant is an employer who has specified duties in relation to the pensions of its employees, including paying employer contributions. On 12 October 2023 the Respondent issued the Appellant with an Unpaid Contributions Notice ('UCN') directing the Appellant to calculate the unpaid contributions, pay them and to provide evidence of compliance to the Respondent. The period of pension contributions the UCN related to was between 1 June 2023 and 30 August 2023. The deadline for compliance with the UCN was 22 November 2023.
  5. It is not disputed that the Appellant failed to respond to the UCN at that time. A FPN was issued on 8 December 2023. The Appellant made a review request on 22 December 2023. The Appellant cited the illness of the director and the financial impact the Covid pandemic had had on the business. He set out attempts that had been made to make the payments.
  6. In response, on 4 January 2024 the Respondent issued a varied FPN, giving more time for the Appellant to comply with its duties. The new deadline for the Appellant to comply with the FPN was 31 January 2023.
  7. On 23 January Mr Shorcott of James Barry Accountants emailed the Respondent on behalf of the Appellant with evidence of payment of the relevant pension contributions aside from one, which he said was not the employer's fault.
  8. An Escalating Penalty Notice ('EPN') was issued on 2 February 2024 and the subject of a separate appeal (reference FT/PEN/2024/0249). The EPN was later revoked and is not relevant to the matters in issue in this appeal.
  9. The Appellant requested a review of the FPN and EPN on 5 April 2024. On 10 April 2024 the Respondent declined to consider it on the basis it was late.
  10. Legal framework

    Duties of the employer

  11. The Pensions Act 2008 ("the 2008 Act") requires employers to enrol "job holders" in occupational or workplace pension schemes and pay contributions as specified by the Act and the qualifying scheme.
  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 37: the Regulator may issue an unpaid contributions notice if it is of the opinion that relevant contributions have not been paid on or before the due date. The unpaid contributions notice requires the employer to pay the unpaid contributions into a pension scheme 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' evidence and submissions

    The Appellant

  20. The Appellant's grounds for appeal included that it was unclear how to contact the Respondent to rectify the problem, and that it therefore believed the matter to be closed in January 2024. It also may have not received a letter relating to the EPN. The Appellant is now up to date with its pension contributions.
  21. Mr Shorcott gave evidence for the Appellant. I found him to be a truthful witness. He was mainly able to give evidence about events after the FPN had been issued, though he did repeat the facts he stated in the review request of 22 December 2023. These were that the Appellant's director had been unwell and that his business had been severely affected by the Covid pandemic. He explained the technical problems that the business had had trying to get NEST to accept some of the payments made through its system. He accepted that the unpaid contributions were not made until after the FPN was issued.
  22. Mr Shorcott also said that he did not think the letter of 4 January 2024 explaining what needed to happen next was clear. He had been under the impression that the Appellant had been given more time to comply with the UCN, rather than the FPN.
  23. The Respondent

  24. The Respondent says that I should accept the UCN and FPN were served correctly on the Appellant. It points out that the Appellant did not do anything to comply with the UCN before the deadline of 22 November 2023. It also submits that eventual compliance is not a reasonable excuse for failure to comply with a UCN.
  25. In oral submissions Ms Jones explained that the UCN is to give the employer a chance to correct errors. The FPN was issued because the Respondent had not heard from the Appellant in response to the UCN. After the FPN was issued on 8 December most contributions were paid. The Respondent gave the Appellant more time to comply with the FPN but did not change the decision to impose the FPN.
  26. Preliminary issue: timing of appeal

  27. The appeal was filed on 10 April 2024, well over 28 days past the date of the FPN review on 4 January 2024. However, in the meantime the Appellant was actively engaging with the Respondent and trying to resolve the issue.
  28. While the delay is significant, I do accept the letter of 4 January 2024 is not entirely clear as to what the next steps were and the Appellant may have thought it did not need to take action immediately. The Appellant was continuing to engage with the Respondent and attempt to resolve the issue. When asked for oral submissions on timeliness Ms Jones did not say that the Respondent would be prejudiced by an extension of time. In all the circumstances of the case, I am satisfied it is just to extend time to bring the appeal.
  29. Findings

    Was the Unpaid Contributions Notice correctly imposed?

  30. It is not disputed by the Appellant that there were unpaid contributions to the scheme for part of the period between 1 June 2023 and 30 August 2023. The Respondent was entitled to issue the UCN.
  31. Was the Unpaid Contributions Notice correctly served on the Appellant?

  32. The Appellant does not dispute receiving the UCN and there is a presumption of receipt. The UCN was issued to the Appellant's registered address on Companies House: Unit 13 Highnam Business Centre, Highnam, Gloucester GL2 8DN. I find that there is nothing to rebut the presumption of receipt, and so I find the UCN was correctly served on the Appellant.
  33. Does the Appellant have a reasonable excuse for failing to comply with the Unpaid Contributions Notice?

  34. Considering everything in the round, I do not accept that the Appellant has a reasonable excuse for failing to comply with the UCN. The problem with the Appellant's submissions is most of its mitigating actions were taken after the FPN. They would be relevant in an appeal against the EPN, but that has been revoked. Mr Shorcott was doing his best to sort the problem out, but by the time he started doing so in December 2023 it was already too late, the UCN deadline had passed on 22 November 2023.
  35. The evidence of why the Appellant could not comply sooner is weak. Though I accept Mr Shorcott's evidence that the Director was admitted to hospital several times over the last few years, it was not submitted that he was admitted or unwell during the period of the UCN. The impact of Covid may have a lasting impact on the finances of the business but I do not accept it would have still been affecting the ability of the Appellant to reply to a UCN in October and November 2023.
  36. As Ms Jones pointed out, the Appellant did not attempt to communicate with the Respondent to say that it was having difficulties when the UCN was issued. I accept Mr Shorcott's evidence that those difficulties did exist. If the Respondent had known about the technical difficulties experienced by the Appellant it could have extended time to comply, as it did by varying the FPN on 4 January 2024.
  37. The requirement to respond to a UCN must partly be to assist the Respondent in the performance of its functions, to save it investigative time. In this way, the UCN assists the Respondent to ensure that employers comply with their duties, while giving them a fair opportunity to respond to concerns. The Appellant in this case failed to take that opportunity and I find there was no reasonable excuse for that failure.
  38. Conclusion

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

    Date: 18 May 2025

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