PENSIONS ACT 2004 RESTRICTIONS ON LUMP SUM DEATH BENEFITS

Pensions Bulletin Number 2006/27 6th July 2006 PENSIONS ACT 2004 RESTRICTIONS ON LUMP SUM DEATH BENEFITS The Pensions Regulator has confirmed that occupational pension schemes may no longer be able to operate life cover only membership for certain membership categories. Its guidance follows a note provided by the Department for Work and Pensions (DWP) in March which itself flowed from the Pensions Act 2004. The Regulator's guidance is consistent with the points previously made by the DWP (see Pensions Bulletin 2006/09). However, whilst the DWP addressed death in service benefits (which appears to be consistent with the Act), the Regulator has addressed lump sum death benefits. It is not clear why the Regulator has taken this approach. The Act requires schemes to limit their activities to retirement benefit activities. Supplementary benefits, such as those paid on death, are only permissible where they are provided on an ancillary basis. Trustees who continue to provide death in service benefits in the absence of pension benefits or appropriate linkage to such may be fined by the Regulator. In its guidance the Regulator sets out some circumstances where linkage enables an occupational pension scheme member to be validly entitled only to lump sum death benefits: where an employee has been offered membership for pension benefits or will be after completing a waiting period (that ends before the employee reaches retirement age); continuation of life cover (in any form) after a scheme member has retired; where an employee has opted out of retirement benefits; and for existing scheme members who have pension benefits in schemes closed to new entrants or future accrual. Schemes closed to new members or future accrual are unlikely to be able to accept new members for lump sum only death benefits unless pensions are being provided for them under a separate scheme and there is a sufficient concrete and identifiable link between the schemes through the employer. Schemes that only provide lump sum death benefits are no longer regarded as occupational pension schemes. As a consequence, they can no longer be used as a technical exemption from the stakeholder access requirements. The Regulator requires affected employers to take immediate action to designate a stakeholder pension. Comment: Employers sponsoring occupational pension schemes that have life cover only members will need to examine their inclusion in the light of this guidance, taking legal advice where necessary. They may now need to make plans to meet the legislative requirement either by providing a

pension link or by removing the affected members from the scheme and making separate provision for them. Whilst the latter should be straightforward to achieve there will be various process issues to address including establishing a new free-standing life cover scheme, member announcements, changes to explanatory booklets and amending insurance policies where appropriate. FINANCE BILL 2006 HOUSE OF COMMONS STAGE COMPLETED The Finance Bill has now completed its passage through the House of Commons and should receive Royal Assent before the summer recess. Although there have been a number of amendments to its contents there are relatively few affecting the pension issues that it covers. The two significant changes are as follows: The bridging pension proposals (see Pensions Bulletin 2006/14) have been further clarified and modified. They now provide that if the employment in relation to the scheme is a mixture of contracted-out and contracted-in service then regulations can set the maximum reduction as a percentage between 125% and 250% of the single person's basic state pension (the limits where all service is contracted-out and contracted-in respectively). The definition of short service refund lump sum has been amended to provide that where other legislation prohibits the payment of a lump sum, then this will not offend the general requirement that the entire member s entitlement to benefits must be extinguished. Comment: The second of these enables COMPS which had a pre A-day practice of refunding the non-protected rights component and keeping the protected rights within the scheme, to continue with this policy. PERSONAL PENSIONS NEW REGULATED ACTIVITIES TO WIDEN POOL OF PROVIDERS An Order has been laid before Parliament whose purpose is to facilitate wider provision of personal and stakeholder pensions whilst maintaining existing levels of consumer protection. The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2006 (SI 2006/1969) provides that from 6th April 2007 there will be new regulated activities of "establishing, operating or winding up a personal pension scheme" and "dealing in, arranging and advising on rights under such schemes" and any person will be able to seek approval from the Financial Services Authority to be registered to offer tax-privileged non-occupational pension schemes. The Order permits applications for approval to be made from 1st October 2006. Existing providers of personal pensions will have to go through the process of seeking approval for the new activity but there are provisions to ensure they can continue to run existing schemes whilst their applications are pending. Existing providers of stakeholder pensions will be deemed already to have approval in relation to the new activities. See the explanatory memorandum for further details and Pensions Bulletin 2005/40 for the background to this legislative change. PENSION PROTECTION FUND PENSION SHARING Regulations have been laid before Parliament that enable the Pension Protection Fund to implement outstanding pension sharing orders inherited from occupational pension schemes both debits in respect of members and the creation of pension credit members. In order to determine their PPF compensation, the latter are treated as though they became a scheme member immediately before the assessment date. Page 2 of 7

The Pension Protection Fund (Pension Sharing) Regulations 2006 (SI/2006/1690) (see also the explanatory memorandum) come into force on 1st August 2006. WINDING UP PROCEDURE FINAL REGULATIONS Regulations have been laid before Parliament requiring schemes subject to the scheme funding provisions to prepare a formal winding up procedure if they go into wind up during the recovery period. The Occupational Pension Schemes (Winding up Procedure Requirement) Regulations 2006 (SI 2006/1733) come into force on 24th July 2006 (see also the explanatory memorandum). The Department for Work and Pensions (DWP) has also published its response to the consultation on the draft regulations (see Pensions Bulletin 2006/13). In it the DWP makes clear that trustees are not required to disclose any wind up procedure prepared in advance of the scheme going into wind up and they may revise the procedure during winding up if they consider it is warranted. INVESTMENT STATISTICS BIG SWITCH BY PENSION FUNDS TO GILTS The Office for National Statistics has published its latest summary of investment by insurance companies, pension funds and trusts. It shows that of the net 7.9 billion invested by selfadministered pension funds in the first quarter of 2006, nearly 5 billion went into government securities over 70% of the total net investment in government securities by all institutional investors. Comment: This is a significant change to previous periods and is a clear indication of the drive into gilts being undertaken by pension schemes. PENSIONS PORTABILITY DRAFT EUROPEAN PENSIONS DIRECTIVE The Department for Work and Pensions has published a response to its earlier consultation on the draft Portability of Supplementary Pensions Directive (see Pensions Bulletin 2006/05). This response clarifies some of the points raised in the consultation and provides updates where the position has subsequently developed. On transferability the Government has received some assurance that the Directive is not intended to require schemes to accept transfer values. It is also seeking exemptions for under-funded schemes from providing a full transfer value such reductions not being explicitly provided for in the current draft of the Directive. The Government has requested that schemes in wind-up be exempted from the Directive. It has welcomed a clarification that it will not apply retroactively ie the Directive will not seek to reverse circumstances that have already been permanently fixed. The UK along with other member states will be negotiating on the contents of the Directive through the European Council. The intention is that the first reading of the Directive will take place in the European Parliament in September/October this year. ASSURANCE REPORTS ON INTERNAL CONTROLS PENSIONS ADMINISTRATION The Institute of Chartered Accountants in England and Wales has issued fresh guidance for accountants in relation to providing reports on internal controls of a service organisation. Page 3 of 7

The guidance is in response to the increase in outsourcing in recent years and the consequential need of customers of service organisations to obtain assurance that the outsourced activities are subject to appropriate controls. AAF 01/06, which replaces FRAG 21/94 for periods ending on or after 31st March 2007, has been specifically developed for a range of financial service activities including pension administration and in one of the appendices a list of control objectives for pension administration is set out. These objectives contain no surprises, on the whole reflecting statutory requirements (eg contributions processed within deadlines) and matters that would generally be regarded as good practice (eg adhering to client agreements and maintaining and reconciling up-to-date member data records). There are also IT objectives, such as restricting access to authorised individuals and maintaining an off-site back-up facility, tested regularly for data recoverability. ACCOUNTING FOR PENSIONS RESEARCH PROJECT UPDATE The Accounting Standards Board has published a discussion summary that provides an update on its research project on accounting for pensions which it commenced last October (see Pensions Bulletin 2005/42). The update sets out a summary of issues discussed along with some tentative views. The ASB is not specifically seeking comments at this stage. The initial part of the project has been concerned with an examination of what should be reflected in the measurement of liabilities, leaving for another day how the measurement should be done. Consideration is divided into defining liabilities for pensions and other retirement benefits and defining the assets and liabilities of each entity who may be party to an arrangement. Project members have yet to discuss some of the more interesting aspects within their scope such as: accounting for future administration expenses particularly the PPF levy; the impact of pension regulations since FRS17 and IAS19 were developed; and the extent to which long-term liabilities should be contained within pension fund financial statements. The intention is that the findings of this research project will contribute to the development of an improved international accounting standard which may provide a suitable basis for a replacement for FRS17. ACTUARIAL STANDARDS & REGULATION FUNDING ARRANGEMENTS The Financial Reporting Council has published a paper confirming the funding arrangements for the first year (2006/07) of its new role overseeing actuarial standards and regulation. The total anticipated cost is 1.7 million of which 10% will come via a levy on the actuarial profession. The other 90% will be levied evenly between insurance companies and those pension schemes with 1,000 or more members the rate for which will be 2 per 100 members. This will be collected by the same agent used for the Pensions Regulator s general levy, with the first invoices being sent out this autumn. Page 4 of 7

LOCAL GOVERNMENT PENSION REFORM CONSULTATION The Department for Communities and Local Government has published a consultation paper putting forward four proposals for the future of the Local Government Pension Scheme in England and Wales. The Government s objective is to maintain a good quality, defined benefit, funded scheme, whilst ensuring it remains affordable, sustainable and acceptable to taxpayers. The four options are: retain core structure of existing scheme with secondary benefit improvements (improved lump sum death benefits and partner s pensions); introduce a better targeted two-tier illhealth benefit and consider a tiered employee contribution rate; as above but move from the 1/80th pension plus 3/80th cash structure to a 1/60th pension structure; move to a career-average earnings structure, either with an accrual rate of 1.85% and revaluation linked to the RPI or with an accrual rate of 1.65% and revaluation at 1.5% over RPI; similar to the above but with the additional facility for members to make one-off contributions to obtain final salary linked benefits rather than career-average salary benefits. To help pay for this, 50% of the savings generated from the following two sources are being recycled into the scheme: the removal of the 85 year rule that gives members the right to retire from age 60 with an unreduced pension if the sum of their age and pensionable service is at least 85; and the ability to take a lump sum up to the limits permissible under the Finance Act 2004 any pension beyond the 3/80ths tax free lump sum formula being commuted at a rate of 12:1. The intention is that the new-look scheme will be available to all new entrants and existing scheme members from 1st April 2008. The mechanics of how the accrued rights of existing members will be transferred or protected remain to be discussed. THE PENSIONS ADVISORY SERVICE ANNUAL CASEWORK REPORT The Pensions Advisory Service (Tpas) has published its latest annual casework report, providing details of the numbers and types of pension enquiries and complaints handled, comment and analysis on the various issues raised by consumers and some useful case studies. Tpas noted a large increase in queries in the run-up to 6th April 2006, the majority of them relating to the change to the rules for trivial commutation of pension benefits, with many people not having appreciated that trivial commutation is permissible only if the value of all their pension arrangements, not just one of them, does not exceed 1% of the standard lifetime allowance. Although there was a significant fall in dispute cases down 18% to 5,956 the total number of people contacting Tpas increased slightly to 67,486. WORK AND FAMILIES ACT 2006 DRAFT REGULATIONS The Department for Trade and Industry (DTI) has published draft regulations that will update the maternity and adoption leave provisions in respect of children born on or after 1st April 2007 (see Page 5 of 7

also the draft explanatory memorandum). This follows the enactment of the Work and Families Act 2006 (see Pensions Bulletin 2006/26). The regulations implement promised changes to the maternity leave scheme, particularly: extending entitlement to additional maternity leave to all employed women; extending to eight weeks the notice which a woman must give to an employer if she changes her planned date of return from maternity leave; providing that a woman may undertake up to ten days work ( keeping in touch days ) during her maternity leave period without bringing her leave to an end; clarifying the reasonable contact an employer may make with a woman during her maternity leave without it bringing maternity leave to an end; and clarifying the rules about a woman s right to return to work after maternity leave by removing the small employers exemption. Equivalent changes are being made to the adoption leave scheme. The DTI has also made the Work and Families Act 2006 (Commencement No.1) Order 2006 bringing into force various provisions of the Act. EUROPEAN PENSIONS DIRECTIVE INFRINGEMENT PROCEEDINGS TO BEGIN The European Commission has decided to refer the UK and Slovenia to the European Court of Justice for having not written (or only partially written) the European Pensions Directive into their national laws. Both the UK and Slovenian governments have so far failed to respond to the Commission's request for action sent in April 2006 (see Pensions Bulletin 2006/16). Comment: Again no details are provided as to the reasons for the UK s non-compliance. However the implementation of the internal controls requirements continues to remain outstanding. PENSIONS TAX SIMPLIFICATION NEWSLETTER NO.16 HM Revenue & Customs has published its 16th simplification newsletter which includes final versions of the following forms for overseas schemes (see Pensions Bulletin 2006/22): APSS252 which should be used by managers of either a Qualifying Overseas Pension Scheme or an Overseas Pension Scheme to report benefit crystallisation events in relation to a migrant member and a member subject to the transitional provisions for corresponding acceptance respectively (see also the completion notes and the supplementary page). APSS253 which should be used by the manager of a Qualifying Recognised Overseas Pension Scheme to report subsequent payments made to a member who has transferred his registered scheme benefits to this scheme (see also the completion notes and supplementary page). PENSIONS TAX SIMPLIFICATION ACCOUNTING FOR TAX FORM FINALISED HM Revenue & Customs has published a final version of its accounting for tax (AFT) form APSS302 (see also the completion notes and the supplementary page for Part 6 and for Part 7 of the form). Page 6 of 7

Scheme Administrators are required to submit this form on a quarterly basis the first is due by 14th August 2006 in respect of the period to 30th June 2006 (see Pensions Bulletin 2006/25 for more details). It is not yet available to submit using the Pension Schemes Online facility. 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 Chris Gubby at our London office or the partner who normally advises you. The firm is regulated by the Institute of Actuaries in respect of a range of investment business activities. Lane Clark & Peacock LLP Page 7 of 7