PENSIONS ROUND-UP MARCH 2016 IN THIS ISSUE. 06 Legislation. 02 Introduction. 08 Public service pension schemes. 03 Budget 2016

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1 PENSIONS ROUND-UP MARCH 2016 IN THIS ISSUE 02 Introduction 03 Budget The End of contracting-out and New State Pension 05 The Pensions Regulator 06 Legislation 08 Public service pension schemes 09 Other News 10 On the Horizon 11 Contact Details

2 INTRODUCTION Welcome to the latest edition of DLA Piper s monthly newsletter Pensions Round-Up in which we provide an overview of developments in pension legislation, case law and regulatory guidance. In this edition we look at key developments from March 2016 including the following. Budget 2016: the main pensions announcements made in the Budget including a brief overview of the responses to consultation on tax relief, steps to be taken in response to recommendations of the Financial Advice Market Review, the restructuring of the statutory financial guidance providers, and some changes to ensure the DC flexibilities are working as intended. End of contracting-out and State Pension: an update on regulations in relation to the end of contracting-out; the publication by the DWP of resources relating to the State Pension; and reports from the Work and Pensions Committee and the National Audit Office highlighting a communications issue concerning GMP increases. The Pensions Regulator: the launch of a refreshed campaign in relation to pension scams; the results of research about the DC flexibilities; and a consultation about an updated draft compliance and enforcement policy for occupational DC schemes. Legislation: the introduction of requirements to provide retirement risk warnings to members with DC benefits; amendments to the audited accounts regulations; amendments to the legislation on DC governance requirements introduced in April 2015; the publication of the Finance Bill; changes to the automatic enrolment legislation including the introduction of further exceptions; the implementation of a ban on member-borne commission; and changes to reporting requirements to reflect transitional provisions that apply for the annual allowance for 2015/16. Public service pension schemes: an update from the Treasury about GMP increases in public service schemes; the publication of guidance by the Pensions Regulator about the provision of annual benefit statements; and regulations making amendments to the NHS Pension Scheme. Other news: the publication of information about the lifetime allowance and annual allowance changes which come into force on 6 April 2016; the publication of a report following the Joint Forum on Actuarial Regulation s review of DB to DC transfers; and the appointment of the independent lead of the first State Pension age review. On the Horizon: a timeline of some of the key future developments in pensions to help employers and trustees plan ahead. If you would like further information about any of the issues raised in this edition of Pensions Round-Up, please get in touch with Cathryn Everest or your usual DLA Piper pensions contact. Contact details are at the end of this newsletter. 02 Pensions Round-Up March 2016

3 BUDGET 2016 On 16 March 2016 the Chancellor delivered the Budget In this section we provide an overview of the key announcements in relation to pensions. TAX RELIEF From July to September 2015 the Treasury consulted about whether there is a case for reforming pensions tax relief to strengthen incentives to save. A summary of responses was published on 16 March and the Budget document reports that the consultation found that: (i) while the current system gives everyone an incentive to save into a pension and people like the 25% tax free lump sum, it is also inflexible and poorly understood; and (ii) young people in particular are not saving enough, often because they feel they have to choose between saving for their first home and saving for retirement. LIFETIME ISA One of the measures announced in the Budget was therefore the introduction of a Lifetime ISA which will be available from April A person can open a Lifetime ISA between the ages of 18 and 40 and save up to 4,000 a year in it. Any savings put in before a person reaches age 50 will receive an added 25% bonus from the government. The Lifetime ISA can be used towards buying a first home or as retirement income without a withdrawal penalty. On 29 March the Work and Pensions Committee re-opened its inquiry into automatic enrolment in light of concerns raised by stakeholders about the compatibility of Lifetime ISAs with automatic enrolment and the impact they could have on opt-out rates. INFORMATION, ADVICE AND GUIDANCE The government will ensure the industry designs, funds and launches a pensions dashboard (whereby an individual can view all their retirement savings in one place) by On 14 March the report of the Financial Advice Market Review was published. In line with its recommendations: (i) over summer 2016 the Government will consult on introducing a Pensions Advice Allowance to allow people to withdraw up to 500 tax free before age 55 from their DC pension to redeem against the cost of financial advice; and (ii) the Government will increase the existing 150 income tax and National Insurance relief for employer-arranged pension advice to 500. The Government will restructure the statutory financial guidance providers the Money Advice Service (MAS), TPAS and Pension Wise to ensure that consumers can access the help they need to make effective financial decisions. The new delivery model includes a new pensions guidance body which will incorporate functions currently provided by TPAS and Pension Wise, and some pensions guidance provided by MAS. A consultation about the proposals was published alongside the Budget and the Government s response is expected in autumn DC FLEXIBILITIES A number of changes will be made to ensure that the DC pension flexibilities are working as intended. For example: (i) measures to re-align the tax treatment of serious ill-health lump sums with lump sum death benefits; (ii) legislating to convert dependants flexiaccess drawdown accounts to nominees accounts when dependants turn 23 so that they do not have to take their funds as a lump sum taxed at 45%; and (iii) legislating to allow DC pensions in payment to be paid as a trivial commutation lump sum. PUBLIC SERVICE PENSION SCHEMES The Government has reviewed the discount rate used to set employer contributions to the unfunded public service pension schemes and the discount rate is being set at 2.8% meaning that employers will pay higher contributions to these schemes from 2019/

4 THE END OF CONTRACTING-OUT AND NEW STATE PENSION THE END OF CONTRACTING-OUT There are a number of issues for employers and trustees to consider in relation to the introduction of the new single-tier State Pension and the end of contracting-out on 6 April 2016 including: possible scheme amendments; administering accrued contracted-out rights; communicating with members; reconciling GMP records; and the impact for automatic enrolment. You can read more in our Pensions Alert dated 4 March In the February edition of Pensions Round-Up we reported on a number of further sets of regulations about the end of contracting-out that were made in February. In March, the Social Security (Contributions) (Amendment) (No.2) Regulations 2016 were made which include some amendments to reporting requirements in consequence of the fact that employers will need to report less earnings information to HMRC when making Real Time Information returns following the end of contracting-out and the introduction of the new State Pension. These regulations also remove the need for employers to report the Scheme Contracted-out Number and Employer Contracted-out Number as they will no longer be needed once contractedout contribution rates are abolished. STATE PENSION RESOURCES On 14 March the DWP published an updated version of its fact sheet which explains why a Contracted Out Pension Equivalent (COPE) amount may have been included when a person used the online service for State Pension statements. On 16 March the DWP published a number of resources for stakeholders and employers to use to help them answer questions about the new State Pension. The resources include text that could be posted into an and text that could be used for an article on a website, intranet or newsletter, as well as bullet points on the main issues so that employers can use these to write their own articles if they prefer. The information covers some of the key features of the new State Pension and the impact of contracting-out. WORK AND PENSIONS COMMITTEE AND NATIONAL AUDIT OFFICE On 27 March the Work and Pensions Committee published a report about Communication of the new state pension. The Committee s conclusions include that three groups in particular stand to receive less in the early years of the new State Pension than they would notionally have received under the current system, and one of these groups is those who built up large GMPs and who will reach State Pension age during the early years of the new State Pension so have little time to build up additional entitlement to the new State Pension. Also in March, the National Audit Office issued a report about the impact of State Pension reforms on people with GMPs which notes that it is concerned that the DWP has limited information about who is affected by the impact of pension reforms on GMPs. The issue for those with large GMPs arises from the fact that schemes do not have to provide increases on pre-6 April 1988 GMPs or post-5 April 1988 GMPs where the increase is in excess of 3%. These have previously effectively been provided through the State Pension, but this will not be the case for those who reach State Pension age on or after 6 April The Committee s recommendations include that the DWP work with pension providers to write to individuals who built up a GMP during the period 1978 to The Committee states that it was told that many occupational scheme policy booklets referred to state inflation-proofing of GMPs and assured members they would not be worse off as a result of contracting-out. It is important for trustees of schemes containing GMPs to review their booklets and update any such wording. When drafting updates to booklets, trustees should also bear in mind that even for those reaching State Pension age before 6 April 2016, it may not be the case that the GMP increases will be paid through the State Pension. 04 Pensions Round-Up March 2016

5 THE PENSIONS REGULATOR PENSION SCAMS On 23 March the Regulator unveiled a refreshed and hard hitting scorpion campaign to warn of the dangers of pension scams. The campaign has been revamped to be clearer for savers and, for the first time, information on how to avoid a scam is now separate, focused and specific for pension savers. As well as information on the Regulator s website, there are two booklets: (i) a booklet for members which sets out a case study and ten steps for people to take to protect their pensions; and (ii) a booklet for pension professionals which includes information about how they can help protect members, a scheme transfer checklist, and information about carrying out due diligence. Trustees should update their transfer processes to ensure that the up to date booklet is provided to members. As reported in our recent Pensions Alert about a High Court ruling concerning a member s statutory right to transfer, dealing with cases where a pension scam is suspected remains a difficult issue for trustees. The booklet for pension professionals notes that the Regulator cannot waive a trustee s legal duty to carry out a transfer within the statutory deadline where the legislative requirements (or those under scheme rules) are met. A key part of trustees transfer processes will therefore be taking steps to highlight risks to members. It is also good practice for trustees to follow the processes set out in the industry code of good practice on combating pension scams. DC FLEXIBILITIES In March the Regulator published the results of some research it conducted about how some occupational DC schemes have approached the implementation of the new flexibilities. The report is based on a series of interviews with trustees and sponsoring employers during the second half of Findings include that: 94% of schemes provide a full uncrystallised funds pension lump sum (UFPLS), with the remaining 6% stating that this option will be provided in the next 12 months; 53% provide a partial UFPLS; and 12% drawdown. If looking at the figures for single employer occupational schemes only, the figures are 92% providing a full UFPLS, 42% a partial UFPLS and none providing drawdown (although some offer drawdown via a third party). DC SCHEMES COMPLIANCE AND ENFORCEMENT POLICY In March the Regulator published a consultation on its draft compliance and enforcement policy for occupational DC schemes. The Regulator welcomes comments on any aspect of the draft policy but sets out some questions on areas where it has a particular interest including: (i) a proposal to broaden its proactive approach; (ii) principles which the Regulator has developed to guide it in determining the amount of a penalty; (iii) a mechanism proposed to be used when calculating the penalty for a breach of the requirement to produce a chair s statement under the new DC governance requirements the mechanism takes into account factors including the number of members, previous breaches and whether there is a professional trustee in place; and (iv) a proposed procedure for making decisions about the exercise of the Regulator s functions under the DC charges and governance regulations. The consultation closes on 3 May DC SCHEME RETURNS On 14 March the Regulator issued a press release reporting that, in line with its educate and enable approach, it provides guidance for trustees on completing the scheme return. However, its figures show that DC scheme return completion rates have fallen for the second year running, down 18% from January 2014 to January As a result, the Regulator is sending letters to a group of trustees who have failed to complete their 2015 scheme return to require them to provide it within two weeks or risk a fine of up to 5,000 in the case of individuals or up to 50,000 in other cases. 05

6 LEGISLATION RETIREMENT RISK WARNINGS On 6 April 2016 amendments to the Disclosure Regulations come into force introducing statutory requirements to provide retirement risk warnings at the decumulation stage to members with flexible benefits. You can read more about the new requirements in our Pensions Alert dated 24 March MISCELLANEOUS AMENDMENTS DC FLEXIBILITIES The requirements in relation to retirement risk warnings were the subject of a November 2015 consultation which proposed a number of other miscellaneous amendments. As a result of this, other changes coming into force on 6 April 2016 include amendments to the pension sharing on divorce legislation and the Pension Protection Fund legislation in light of the DC flexibilities. For example, the pension sharing legislation now makes it clear that, as is the case for other death benefits, the new types of death benefits for nominees and successors are not shareable. The consultation had also proposed that where an earmarking order is made on divorce in relation to a member who has flexible benefits, schemes would be required to write to the former spouse once the scheme has received notification that the member wishes to draw any of the benefits. However, due to the complexity of the issues, the Government has decided to delay this until a later date to allow time for further consideration and to explore the possibility of guidance. AUDITED ACCOUNTS REGULATIONS Prior to 1 April 2016 the Audited Accounts Regulations prescribed detailed investment information that had to be included in the accounts. However, the Government has been advised by the Pensions Research Accountants Group that, following the introduction of FRS 102 which revised the financial reporting framework in the UK, these requirements could be modernised. On 1 April 2016 changes to the regulations come into force which delete most of the detailed investment disclosure information and introduce a requirement for a statement that the accounts have been prepared in accordance with the relevant financial reporting framework. In addition, these regulations have been amended to exempt multi-employer schemes with at least 20 participating employers from the requirement to obtain a statement from the auditor about whether contributions have been paid in accordance with the schedule of contributions or payment schedule. DC GOVERNANCE Following the publication of a response to consultation in February, regulations were made in March which amend the DC governance requirements introduced in April 2015 including: (i) to put beyond doubt that multiemployer group schemes are excluded from the additional governance requirements that apply to relevant multiemployer schemes ; and (ii) to allow a person appointed by the trustees to act as the chair in the interim period to sign the annual governance statement if it needs to be signed at a time when there is no chair of trustees (because of the three month period to appoint a new chair). It is also worth noting that a ban on active member discounts contained in the April 2015 regulations comes into force on 6 April FINANCE (NO. 2) BILL The Finance (No. 2) Bill was laid before Parliament in late March and contains provisions about: the reduction to the lifetime allowance from 6 April 2016; some exceptions from requirements to test the value of dependants scheme pensions; inheritance tax and drawdown; bridging pensions; and provisions in relation to the DC flexibilities announced in the Budget. We will report further on the Finance Bill as it progresses through Parliament. 06 Pensions Round-Up March 2016

7 LEGISLATION AUTOMATIC ENROLMENT Following a consultation issued in January 2016, the Government response and final regulations were published in March which amend the automatic enrolment legislation from 6 April 2016 including to: introduce further exceptions which will turn the automatic enrolment and re-enrolment duties into powers in relation to jobholders who hold office as a director of the company by which they are employed, and jobholders who are members of a Limited Liability Partnership but who are not employees for tax purposes; replace the current position of two possible deadlines (depending on whether there are workers to re-enrol) for submitting the re-declaration of compliance with a single deadline which is five months after the third anniversary of the staging date or last re-enrolment date; and introduce a transitional easement whereby the alternative DB quality requirement based on the cost of future accruals can be applied at scheme level, rather than benefit scale level, for a transitional period. On 29 March the DWP published updated guidance about the DB quality requirements which covers the cost of accruals test generally and also the transitional easement. Regulations were also made in March reflecting the new upper limit of the qualifying earnings band of 43,000 which will apply from 6 April The lower limit will remain at 5,824 and the qualifying earnings trigger will remain at 10,000. MEMBER-BORNE COMMISSION The DWP finalised regulations in March implementing a ban on member-borne commission and published accompanying guidance. The regulations apply to specified schemes which, subject to limited exceptions, are essentially occupational pension schemes that provide money purchase benefits and are being used by an employer as a qualifying scheme for automatic enrolment in relation to at least one jobholder. The regulations prevent service providers (meaning a person who provides an administration service directly to the trustees of the scheme) from levying a charge on members to recover the cost of commission payments to advisers. The regulations will apply to new commission arrangements entered into on or after 6 April 2016 and to existing arrangements if they are renewed or varied on or after 6 April The government will consult in due course on extending the ban to existing arrangements. Action points for trustees to note are that: (i) they will have a duty to notify service providers in writing that the scheme is a specified scheme within three months beginning with the later of 6 April 2016, the date the scheme becomes a specified scheme and the date on which the provider becomes a service provider in relation to the scheme; (ii) if requested, they will have to provide information to the service provider about deferred members; and (iii) in 2017 they will have to notify the Regulator via the scheme return whether or not the service provider has confirmed its compliance with the ban. ANNUAL ALLOWANCE REPORTING REQUIREMENTS From 6 April 2016 when the tapered annual allowance is introduced, all pension input periods must align with tax years. Transitional provisions treat the 2015/16 tax year as consisting of two tax years the pre-alignment tax year from 6 April to 8 July 2015 and the post-alignment tax year from 9 July 2015 to 5 April In consequence of this, regulations were made in March modifying the requirements to provide pension savings statements for the 2015/16 tax year. The consultation draft of the regulations also proposed a new requirement for statements to be provided automatically to members whose pensionable earnings for the tax year exceed 110,000 but this is not included in the fínal version in light of responses which noted that this would be extremely burdensome for schemes. 07

8 PUBLIC SERVICE PENSION SCHEMES GMP INCREASES In the section above about the end of contracting-out and the new State Pension, we report on an issue that arises in relation to increases on GMPs. In summary: (i) prior to 6 April 2016, increases on GMPs which schemes are not obliged to pay have effectively been paid via the Additional State Pension although this will not be the case for all members; and (ii) for those who reach State Pension age on or after 6 April 2016, there is no Additional State Pension and therefore such increases will no longer be paid. A news story issued by the Treasury on 1 March shows that the position differs for public sector workers. It explains that the Government s current practice is to fully price protect the GMP of public sector workers where the Additional State Pension uprating rules do not apply, and the Government will continue with this practice and fully index public service pensions for workers who reach State Pension age from April 2016 to 5 December However, the news story also reports that the Government is expected to launch a consultation this year on how to address this issue in the longer term. ANNUAL BENEFIT STATEMENTS A statutory requirement for public service pension schemes to issue annual benefit statements to active members comes in for all public service schemes by the end of August 2016, other than LGPS which had to issue the statements by the end of August The Regulator has therefore published an essential guide for schemes on issuing annual benefit statements and an at-a-glance checklist to help with their planning. The guide and checklist cover four stages: (i) the importance of planning identify data requirements, identify critical dates, define communications plan, identify risks to delivery and develop contingency plans, and define monitoring process; (ii) test to pre-empt issues test systems and processes, and review and update annual benefit statement format; (iii) managing delivery process data, issue the statement, and address member queries; and (iv) reviewing and refining identify lessons learned, update plans and processes, and report and communicate changes. NHS PENSION SCHEME Following a consultation issued in December 2015, regulations were made in March amending statutory instruments relating to the NHS pension scheme. The key changes include: (i) permitting the money purchase AVC arrangements to pay lifetime allowance excess lump sums; and (ii) making consequential changes to scheme rules to accommodate the introduction of shared parental leave, the end of contracting-out and the ban in the Pension Schemes Act 2015 on transfers from unfunded public service schemes to schemes offering flexible benefits. 08 Pensions Round-Up March 2016

9 OTHER NEWS ANNUAL ALLOWANCE AND LIFETIME ALLOWANCE On 29 March HMRC published its latest Pension Schemes Newsletter which includes some information about changes to the pensions tax allowances which take effect on 6 April Information in relation to the annual allowance includes that HMRC has updated the Pensions Tax Manual to include guidance on the tapered annual allowance, and is currently developing a new single calculator (which it hopes will be available for use by the summer) to incorporate all the recent changes to the annual allowance so that members can use it for tax years 2015/16 onwards. An appendix to the newsletter also includes some information to help members understand the changes to the annual allowance and whether they are affected. In relation to the reduction in the lifetime allowance (LTA) from 1.25 million to 1 million, the newsletter includes: (i) information about when members with existing protections can apply for Fixed Protection 2016 (FP16) or Individual Protection 2016 (IP16); (ii) appendices providing further information for members about FP16 and IP16 covering issues such as when benefits are tested against the LTA, how benefits are valued for these purposes and when protection is lost; and (iii) updated pro forma letters to apply for FP16 or IP16 before the online service is launched. DB TO DC TRANSFERS On 21 March the Financial Reporting Council published the results of the Joint Forum on Actuarial Regulation s (JFAR) review of transfers from DB to DC schemes. The review was undertaken to help JFAR understand the impact on actuarial work of the pensions freedoms and any consequent impact on actuarial regulation. Findings of the review include that as at 1 October 2015: (i) there has been an increase in both transfer quotations and actual transfers out since the introduction of the freedoms although the number of transfers remains low; (ii) the increase in transfer activity that the review noticed was mainly among the over 55s for whom the new flexibilities include the opportunity to take a cash lump sum, and among those with large transfer values; (iii) trustees do not appear to be actively promoting transfers through changes to communications or options in the scheme; and (iv) some employers are showing interest in the flexibilities to manage the risks arising from DB schemes. The JFAR notes that it is possible that, over time, transfer activity and promotion activity by sponsors will increase and other actuarial issues may arise in relation to changes in transfer experience. The JFAR has therefore concluded that it will continue to monitor the level of transfer activity and any actuarial issues arising in this area. STATE PENSION AGE Existing legislation makes provision for State Pension age to be increased to 67 by 2028, and to 68 between 2044 and It also requires State Pension age to be reviewed during each Parliament, and the report on the first review to be published by 6 May On 1 March the DWP announced the appointment of the independent lead of the first State Pension age review. The purpose of the independent review is to make recommendations to the Secretary of State on factors to consider in arriving at future State Pension age arrangements. The review will be forward looking and focused on the longer term and will not cover the existing timetable to April

10 ON THE HORIZON DATE Unknown Autumn 2015 Early 2016 DEVELOPMENT A consultation on revised regulations about equalising GMPs is expected in this Parliament. The reforms in relation to Defined Ambition, Collective Benefits and automatic transfers of small DC pots will be revisited once the market has had time and space to adjust to the other reforms underway. A draft updated IORP Directive is under consideration. The current draft states that Member States would have 18 months after the Directive comes into force to transpose provisions into national law. Further developments were expected on proposals for transparency of costs and charges. A final response is expected from the Board of the UK Statistics Authority in relation to the June consultation on consumer price statistics The Regulator intends to review its guidance on transfers. The Regulator intends to publish guidance on DB scheme investment strategy. 6 April 2016 The reform of State Pension and the end of contracting-out will take effect. July 2016 Summer 2016 End of 2016 End of March 2017 April 2017 The tapered annual allowance is due to be introduced. The lifetime allowance is due to fall to 1 million and transitional protection (fixed protection and individual protection) is expected to be introduced. Member-borne commission payments and Active Member Discounts will be banned from certain DC qualifying schemes. The commission ban will initially apply to new arrangements, and to existing arrangements later in Miscellaneous amendments consequential on the DC flexibilities (currently the subject of consultation) come into force including requirements for trustees to issue retirement risk warnings to members with flexible benefits. Technical changes to the automatic enrolment legislation, including the introduction of further exceptions, come into force. An updated version of the DC Code (currently subject to consultation) is expected to come into force. Consultation on supporting guidance is expected in spring A new requirement will be introduced in the summer for trust-based schemes to report regularly on their performance in processing transfers. The transitional period in which employers and schemes may continue to use the VAT treatment in VAT Notice 700/17 ends on 31 December The Government will place a duty on the FCA to cap excessive early exit charges. The FCA intends to implement its duty before the end of March In parallel, the Government will consider how existing powers to limit pension charges can be used to implement a comparable cap for trust-based schemes. Legislation to enable the development of a secondary annuities market is expected to be introduced. Consultations on the detail of the proposals are expected in The measures on DC charges and governance standards will be reviewed. 6 April 2018 The lifetime allowance is due to be indexed annually in line with CPI The Government will ensure the industry designs, funds and launches a pensions dashboard by Pensions Round-Up March 2016

11 CONTACT DETAILS Cathryn Everest Professional Support Lawyer, London T +44 (0) cathryn.everest@dlapiper.com David Wright Partner, Liverpool T +44 (0) david.wright@dlapiper.com Vikki Massarano Partner, Leeds T +44 (0) vikki.massarano@dlapiper.com Claire Bell Partner, Manchester T +44 (0) claire.bell@dlapiper.com Ben Miller Partner, Liverpool T +44 (0) ben.miller@dlapiper.com Tamara Calvert Partner, London T +44 (0) tamara.calvert@dlapiper.com Kate Payne Partner, Leeds T +44 (0) kate.payne@dlapiper.com Michael Cowley Partner, London T +44 (0) michael.cowley@dlapiper.com Matthew Swynnerton Partner, London T +44 (0) matthew.swynnerton@dlapiper.com Jeremy Harris Partner, Manchester T +44 (0) jeremy.harris@dlapiper.com 11

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