Priority on wind-up Appeal Court rules on Barber windows

2nd August 2007 Issue No: 32 Pensions Bulletin Priority on wind-up Appeal Court rules on Barber windows In a case that is of potential great significance for under funded schemes that commenced winding up between 6th April 1997 and 5th April 2005, the Court of Appeal has overturned the decision of the High Court (see Pensions Bulletin 2006/32) in the case of Trustee Solutions v Dubery. The case is the latest ramification of the Barber judgement on 17th May 1990. In Barber the European Court of Justice held that different normal retirement ages (NRAs) for men and women were unlawful under EU law and furthermore that EU law had direct effect. Subsequent clarifying judgments settled the position so that the effect of Barber was not retroactive beyond 17th May 1990. Schemes could level down benefits for future service (usually by equalising females NRAs upwards) but service between 17th May 1990 and the date of levelling down ( the Barber window ) had to be levelled up (usually improving males benefits). An aspect of the High Court case concerned how the pension rights of male scheme members with entitlement to Barber window benefits should be prioritised on wind up under Section 73 of the Pensions Act 1995. Section 73 sets out the priority order under which benefits must be secured when winding up in deficit. The version of Section 73 applicable to wind-ups commencing between 6th April 1997 and 5th April 2005 (including the scheme concerned in this case) accorded priority to benefits where entitlement to payment has arisen. In practice to fall outside this class and be treated as a deferred member operated as a cliff edge in schemes winding up in severe deficit. In this instance in 2004 the scheme had liabilities of 17.8 million and assets of only 6.5 million; to be classed as deferred likely meant complete extinguishment of benefit rights. The High Court ruled that members with Barber window benefits who had reached the NRA for this benefit (60 in this case) should be included in the prioritised class, along with pensioners, for all of their pensionable service, rather than along with the deferred class. The Court of Appeal has ruled that instead of this either/or approach (partly dictated by pre 6th April 2006 HM Revenue and Customs requirements) each tranche of benefit should be treated separately. Thus a member with Barber window benefits who had reached the NRA for this benefit will have the Barber window benefits prioritised but not other benefits. As both sides were content with the ruling it seems unlikely that the case will go to the House of Lords. This gives rise to some significant concerns for schemes which went into wind-up between 6th April 1997 and 5th April 2005. Calculations may have been made and assets allocated based on the High Court ruling (or previously based on some other interpretation of Section 73) these may need to be revisited along with the calculations for claims on the Financial Assistance Scheme. Comment While the reasoning may seem impeccable on the surface the result is that over a decade s worth of pensions industry orthodoxy has been overturned by the Courts in a year. Mountains of actuarial and administration work may need to be unpicked which will slow down the already tortuous progress of scheme wind-ups. The only silver lining to this particular cloud is that the ruling appears to only impact schemes that commenced winding up between 6th April 1997 and 5th April 2005. www.lcp.uk.com

Pensions Act 2007 Now published Following Royal Assent (see Pensions Bulletin 2007/31), the Pensions Act 2007 along with explanatory notes has now been published. The Department for Work and Pensions has also produced a useful guide to the key changes to the state pension system being introduced by the Act. Peter Hain, Secretary of State for Work and Pensions, hailed the Act saying that it will deliver the most important reforms to the state pension system in generations. As well as making substantive changes to the state pension system, the Act provides for the creation of the Personal Accounts Delivery Authority. Further details of the constitution of personal accounts are expected in a new Pensions Bill this autumn. The Act also makes provision for: conversion of guaranteed minimum pensions into other benefits; abolition of contracting-out for defined contribution schemes; amendments to dispute resolution arrangements; and increases to the level of payments from the Financial Assistance Scheme. Contrary to what we reported last week, it is now clear that the Act contain one more of the amendments proposed by the House of Lords (see Pensions Bulletin 2007/25). The Act now requires regulations to be made which will prohibit schemes eligible for the Financial Assistance Scheme (FAS) from purchasing annuities from an insurer for a period of nine months after the introduction of the regulations, unless they have either entered into a binding commitment with the insurer or have received permission from the FAS. These regulations are required to be laid before Parliament as soon as is reasonably practicable after Royal Assent. Cohabitation Law Commission recommendations The Law Commission has published a report to Parliament with its recommendations for the reform of the law relating to cohabitation when such relationships break down. Whilst not advocating giving cohabitants the same legal status as married couples or civil partners, it recommends the introduction of a new scheme of financial remedies on separation which would take account of the economic impact of the parties contributions to the relationship, with first consideration being given to any dependent children. Unlike in cases of divorce, cohabitants would not be expected to meet each other s future needs by means of maintenance payments and there would be no principle that the parties should share their assets equally. Although any entitlement to pension rights would not follow automatically, the report recommends that pension sharing and pension attachment orders be one of a number of orders made available to the court in such cohabitation cases. Page 2

Comment At this stage these are just proposals, but if the Government accepts their thrust, it is likely that in due course the pension sharing and attachment legislation will undergo a significant extension in scope. Withdrawal of some Principal Civil Service Pension Scheme passports The Government Actuary s Department (GAD) has announced that it is withdrawing a number of Principal Civil Service Pension Scheme (PCSPS) passports, following the introduction of a new scheme (nuvos) for new joiners from 30th July 2007. The passports being withdrawn are those whose scope is not specifically limited to exclude employees eligible for nuvos. This follows an earlier announcement (see Pensions Bulletin 2007/22) that it was withdrawing all certificates of broad comparability for the Local Government Pension Scheme (LGPS) in England and Wales. GAD has also warned that there are likely to be further PCSPS passport withdrawals shortly. In addition, the National Health Service Pension Scheme is currently under review and GAD expects similar action will be necessary in respect of passports for this scheme later in the year. Pensions Institute The impact of different default fund investment strategies The Pensions Institute has published a working paper on the default fund investment options offered to members of defined contribution pension plans. The paper asserts that a significant majority of scheme members simply follow the scheme s default option, making the investment profile of that fund a crucial determinant of a member s retirement income. The study suggests ways in which investment fund strategies could be more appropriate for the individuals including: employers assessing the profile of employees with the pension product provider, and proactively asking for default funds tailored for their employees companies could enlist financial analysts and planners to assist them with this; making non-default funds more accessible for members for example by offering a limited number of clearly labelled investment funds (such as cautious, balanced or adventurous ); and targeting communication to investors at times which are most likely to provoke a response for example a letter advising the member s account balance has just passed a milestone figure. Page 3

HMRC Guide to online reporting of pension scheme information HM Revenue and Customs has published a guide to its Pension Schemes Online service ahead of the introduction of mandatory electronic filing of pension scheme information (e-mandation) on 16th October 2007 (see Pensions Bulletin 2007/16). The guide is aimed at Scheme Administrators and practitioners who will need to use the Pension Schemes Online service. It provides information about the role of the Scheme Administrator, how to access and use the online service and what reports and returns need to be filed online. Modification of scheme rules Trustees duties and responsibilities A recent High Court ruling highlights the importance that should be attached to the correct procedure being followed when amending pension scheme rules. In Sovereign Trustees Limited and Allatt v Glover, Paylor and Monty, the Court ruled that an attempt by scheme trustees to create a defined contribution section of their defined benefit scheme for all future accrual was not valid as the proper procedures for passing the amendment were not followed. The difficulty appeared to only emerge when the scheme went into wind up following employer insolvency. Pension Protection Fund Protecting People s Pensions The Pension Protection Fund (PPF) unveiled the second phase of its Protecting People s Pensions initiative with the publication of Your journey to... becoming a member of the Pension Protection Fund a leaflet aimed at members of work-based pension schemes whose employers have gone bust and are now going through the PPF assessment period. The PPF launched the initiative earlier this year (see Pensions Bulletin 2007/24) with a leaflet explaining to pension scheme members how PPF compensation works. Pension Protection Fund Newsletter No. 3 The Pension Protection Fund (PPF) has published the third edition of its newsletter in which it gives details of its recent developments. Points of interest include: confirmation of its intention to move to the revised (or a variant of the revised) D&B credit scoring system for the 2008/09 levy year D&B launched this in July and schemes are strongly encouraged to engage with D&B to understand the implications of the new failure score methodology; notice that in August the PPF will be launching an eight week consultation on the future of the pension protection levy the intention being to give greater certainty to levy payers about the size of their bills well in advance of the levy year; and notice that the PPF will be issuing the first invoices for the 2007/08 pension protection levy in late summer. Page 4

European Pensions Directive Extension to EEA states Following the adoption by Iceland, Liechtenstein and Norway of the European Pensions Directive on 12th April 2007, the Department for Work and Pensions (DWP) is consulting on draft regulations making necessary changes to UK pensions legislation. These three countries, along with the 27 members of the European Union (EU), comprise the European Economic Area (EEA). The regulations simply replace references to a member state of the EU with references to an EEA state. Consultation ends on 24th September 2007 and the DWP aim to publish responses, including the next steps, by early October. Comment An update, in June, of the Pensions Regulator s guidance on cross-border schemes (see Pensions Bulletin 2007/25) took account of the extension of the Directive to these three countries. The most likely impact of these latest regulations is in this area. UK based employers with scheme members working in any of these three countries will need to take care that they do not become cross-border with all the funding implications that then follow. HMRC New forms HM Revenue and Customs (HMRC) has updated a number of its forms and notes recently. The following applicable to registered pension schemes have been refreshed: APSS105 Relief at source interim claim; APSS106 Relief at source annual claim; APSS107 Annual statistical return; and APSS200 Notes Protection of existing rights. In addition, form APSS250 along with its notes has also been updated. This form relates to Qualifying Overseas Pension Schemes (QOPS), the relevant migrant members of which may claim migrant member relief under the Finance Act 2004. Effective Pension Supervision IOPS working papers The International Organisation of Pension Supervisors (IOPS), an independent body representing regulators of private pension schemes around the world, has published a series of four working papers highlighting the range of challenges to be met in the development of national pension supervisory systems. The papers aim to share experiences and knowledge among pension regulators worldwide. The working papers are titled: A Review on the Pros and Cons of Integrating Pension Supervision with that of Other Financial Activities and Services; Supervisory Education, Outreach and Communication, including Training of Trustees; Utilisation of Information Technologies in Off-Site Supervision of Private Pension Systems; and Page 5

Experiences and Challenges with the Introduction of Risk-Based Supervision for Pension Funds. This Pensions Bulletin should not be relied upon for detailed advice or taken as an authoritative statement of the law. For further help, please contact David Everett at our London office or the partner who normally advises you. Lane Clark & Peacock LLP provides a full range of actuarial, consultancy, risk analysis and administration services to companies in the UK and internationally. LCP is part of the Alexander Forbes group of companies, employing over 4,000 people internationally. Alexander Forbes is a public company listed on the JSE in South Africa. 30 Old Burlington Street London W1S 3NN Tel: 020 7439 2266 Fax: 020 7439 0183 St Paul s House St Paul s Hill Winchester Hampshire SO22 5AB Tel: 01962 870 060 Fax: 01962 849 802 *PO Box 12 Suite 7, Pollet House St Peter Port Guernsey GY1 4AG Tel: 01481 728 071 Fax: 01481 736 124 *Oriel House York Lane, St Helier Jersey JE2 4YH Tel: 01534 887 600 Fax: 01534 837 888 LCP Belgium Marcel Thirylaan 200 Avenue Marcel Thiry 200 B - 1200 Brussel Bruxelles, Belgium Tel: +32 (0)2 774 9493 Fax: +32 (0)2 774 9257 LCP Libera AG Stockerstrasse 34 Postfach 8022 Zürich, Switzerland Tel: +41 (0)43 817 7300 Fax: +41 (0)43 817 7399 LCP Libera AG Aeschengraben 10 Postfach 4010 Basel Switzerland Tel: +44 (0)61 205 7400 Fax: +44(0)61 205 7499 Actuarial Consultancy of the Year UK Pensions Awards 2005, 2006 & 2007 FT Business Pension and Investment Provider 2007 Investment Consultancy of the Year UK Pensions Awards 2007 FT Business Pension and Investment Provider 2007 All rights to this document are reserved to Lane Clark & Peacock LLP. This document may not be copied or used in anyway without prior permission from Lane Clark & Peacock LLP. LCP is a limited liability partnership registered in England and Wales with registered number OC301436. LCP is a registered trademark in the UK (Regd. TM No 2315442) and in the EU (Regd. TM No 002935583). All partners are members of Lane Clark & Peacock LLP. A list of members names is available for inspection at 30 Old Burlington Street, W1S 3NN, the firm s principal place of business and registered office. The firm is regulated by the Institute of Actuaries in respect of a range of investment business activities. A member of the Multinational Group of Actuaries & Consultants www.mgac.org. Main offices in: AFRICA AUSTRALIA EUROPE NORTH AND CENTRAL AMERICA * No regulated business is carried out from these offices Page 6