Office of Public Sector Information
PART 1 continued
(5) The regulatory functions referred to in subsections (2), (3) and (4) are—
(a) the power to make or extend a restraining order under section 20;
(b) the power to make a freezing order under section 23;
(c) the power to make an order under section 25(3) extending the period for which a freezing order has effect;
(d) the power to make an order under section 26 validating action taken in contravention of a freezing order;
(e) the power to make an order under section 28 directing that specified steps are taken;
(f) the power to make an order under section 30 giving a direction where a freezing order ceases to have effect;
(g) the power to make an order under section 31(3) directing the notification of members;
(h) the power to make an order under section 231 modifying a scheme, giving directions or imposing a schedule of contributions;
(i) the power to make an order under section 3(1) of the Pensions Act 1995 (c. 26) prohibiting a person from being a trustee;
(j) the power to make an order under section 3(3) of that Act revoking such an order;
(k) the power to make an order under section 4(1) of that Act suspending a trustee;
(l) the power to make an order under section 4(5) of that Act revoking such an order;
(m) the power to make an order under section 7 of that Act appointing a trustee;
(n) the power under section 9 of that Act to exercise by order the same jurisdiction and powers as the High Court or the Court of Session for vesting property in, or transferring property to, trustees in consequence of the appointment or removal of a trustee;
(o) the power to make an order under section 11 of that Act directing or authorising an occupational pension scheme to be wound up;
(p) the power to make an order under section 23 of that Act appointing an independent trustee;
(q) the power under section 29(5) of that Act to give a notice waiving a disqualification under section 29 of that Act;
(r) the power under section 30(2) of that Act to exercise by order the same jurisdiction and powers as the High Court or the Court of Session for vesting property in, or transferring property to, the trustees where a trustee becomes disqualified under section 29 of that Act;
(s) the power to make an order under section 67G(2) of that Act by virtue of which any modification of, or grant of rights under, an occupational pension scheme is void to any extent;
(t) the power to make an order under section 67H(2) of that Act prohibiting, or specifying steps to be taken in relation to, the exercise of a power to modify an occupational pension scheme;
(u) such other regulatory functions as may be prescribed;
(v) the power under section 101(1)(b) to vary or revoke in relation to the exercise of any of the regulatory functions mentioned in paragraphs (a) to (u) other than those mentioned in paragraph (j) or (l).
(1) The procedure determined under section 93 must make provision for the special procedure.
(2) The “special procedure” is a procedure which provides for—
(a) the giving of notice of the determination to exercise the regulatory function to such persons as appear to the Regulator to be directly affected by it (a “determination notice”),
(b) the determination notice to contain details of the requirement for the Regulator to review the determination under section 99(1) and of any subsequent right of referral to the Tribunal under section 99(7),
(c) the persons to whom the determination notice was given (as required under paragraph (a)) to have an opportunity to make representations in relation to the determination before it is reviewed under section 99(1),
(d) the consideration of any such representations before the determination on the review,
(e) the giving of a notice in accordance with section 99(4) of the determination on the review (a “final notice”),
(f) the final notice to contain details of the right of referral to the Tribunal under section 99(7),
(g) the form and further content of determination notices and final notices and the manner in which they are to be given, and
(h) the time limits to be applied at any stage of the procedure.
(1) In a case where the special procedure applies, the Regulator must review the determination to exercise the regulatory function.
(2) The review must be determined as soon as reasonably practicable.
(3) The Regulator’s powers on a review under this section include power to—
(a) confirm, vary or revoke the determination,
(b) confirm, vary or revoke any order, notice or direction made, issued or given as a result of the determination,
(c) substitute a different determination, order, notice or direction,
(d) deal with the matters arising on the review as if they had arisen on the original determination, and
(e) make savings and transitional provision.
(4) When the Regulator has completed a review under this section a notice of its determination on the review must be given to such persons as appear to it to be directly affected by its determination on the review.
(5) If the final notice contains a determination to exercise a different regulatory function to the function which was the subject-matter of the determination notice, then the final notice may not be given unless—
(a) such persons as appear to the Regulator to be directly affected by the exercise of the regulatory function have been given an opportunity to make representations, and
(b) the Regulator has considered any such representations before it makes its determination on the review.
(6) Subsection (5) does not apply if the regulatory function is listed in section 97(5) and the Regulator determines to exercise it immediately on the basis that it is necessary to do so because there is, or the Regulator considers it likely that if the function were not exercised immediately there would be, an immediate risk to—
(a) the interests of members under an occupational or personal pension scheme, or
(b) the assets of such a scheme.
(7) The determination which is the subject-matter of a final notice may be referred to the Tribunal (see section 102) by—
(a) any person to whom the final notice is given as required under subsection (4), and
(b) any other person who appears to the Tribunal to be directly affected by the determination.
(8) Where that determination is a determination to exercise a different regulatory function to the function which was the subject-matter of the determination notice, the Regulator must not exercise the regulatory function—
(a) during the period within which the determination may be referred to the Tribunal (see section 103(1)), and
(b) if the determination is so referred, until the reference, and any appeal against the Tribunal’s determination, has been finally disposed of.
(9) Subsection (8) does not apply where—
(a) the regulatory function in question is a function listed in section 96(6) (functions which may be exercised immediately under the standard procedure), or
(b) the regulatory function in question is a function listed in section 97(5) (functions which may be exercised immediately under the special procedure) and the Regulator determines to exercise it immediately on the basis described in subsection (6).
(10) The functions of the Regulator under this section are exercisable on behalf of the Regulator by the Determinations Panel (and are not otherwise exercisable by or on behalf of the Regulator).
(11) The Panel must determine the procedure that it proposes to follow in relation to the exercise of those functions.
(12) Section 94 (publication of Regulator’s procedure) applies in relation to the procedure determined under subsection (11) as it applies to the procedure determined under section 93 (procedure in relation to the regulatory functions).
(1) The Regulator must have regard to the matters mentioned in subsection (2)—
(a) when determining whether to exercise a regulatory function—
(i) in a case where the requirements of the standard or special procedure apply, or
(ii) on a review under section 99, and
(b) when exercising the regulatory function in question.
(2) Those matters are—
(a) the interests of the generality of the members of the scheme to which the exercise of the function relates, and
(b) the interests of such persons as appear to the Regulator to be directly affected by the exercise.
(1) The Regulator may vary or revoke—
(a) any determination by the Regulator whether to exercise a regulatory function, or
(b) any order, notice or direction made, issued or given by the Regulator in the exercise of a regulatory function.
(2) Subsection (1)(b) does not apply to—
(a) an order under section 3(3) of the Pensions Act 1995 (c. 26) revoking a prohibition order under that section,
(b) an order under section 4(5) of that Act revoking a suspension order under that section,
(c) a direction under section 2(3) of the Welfare Reform and Pensions Act 1999 (c. 30) refusing to register a scheme under section 2 of that Act or removing a scheme from the register of stakeholder pension schemes, or
(d) such other orders, notices or directions made, issued or given by the Regulator, in the exercise of a regulatory function, as may be prescribed.
(3) A variation or revocation of an order, a notice or a direction must be made by an order, a notice or a direction (as the case may be).
(4) A variation or revocation made under this section must take effect from a specified time which must not be a time earlier than the time when the variation or revocation is made.
(5) The power to vary or revoke under this section—
(a) is not to be treated for the purposes of subsection (1) as a regulatory function, and
(b) is in addition to any such power which is conferred on the Regulator by, or by virtue of, this or any other enactment.
(1) There shall be a tribunal to be known as the Pensions Regulator Tribunal (in this Act referred to as “the Tribunal”).
(2) The Tribunal is to have the functions conferred on it by this Act or any provisions in force in Northern Ireland corresponding to this Act.
(3) The Lord Chancellor may by rules make such provision as appears to him to be necessary or expedient in respect of the conduct of proceedings before the Tribunal.
(4) Schedule 4 (which makes provision as respects the Tribunal and its proceedings) has effect.
(5) But that Schedule does not limit the Lord Chancellor’s powers under this section.
(1) A reference to the Tribunal under this Act must be made—
(a) in the case of a reference under section 96(3) (referral following determination under standard procedure), during the period of 28 days beginning with the day on which the determination notice in question is given,
(b) in the case of a reference under section 99(7) (referral following determination under special procedure), during the period of 28 days beginning with the day on which the final notice in question is given, or
(c) in either case, during such other period as may be specified in rules made under section 102.
(2) Subject to rules made under section 102, the Tribunal may allow a reference to be made after the end of the relevant period specified in or under subsection (1).
(3) On a reference, the Tribunal may consider any evidence relating to the subject-matter of the reference, whether or not it was available to the Regulator at the material time.
(4) On a reference, the Tribunal must determine what (if any) is the appropriate action for the Regulator to take in relation to the matter referred to the Tribunal.
(5) On determining a reference, the Tribunal must remit the matter to the Regulator with such directions (if any) as the Tribunal considers appropriate for giving effect to its determination.
(6) Those directions may include directions to the Regulator—
(a) confirming the Regulator’s determination and any order, notice or direction made, issued or given as a result of it;
(b) to vary or revoke the Regulator’s determination, and any order, notice or direction made, issued or given as a result of it;
(c) to substitute a different determination, order, notice or direction;
(d) to make such savings and transitional provision as the Tribunal considers appropriate.
(7) The Regulator must act in accordance with the determination of, and any direction given by, the Tribunal (and accordingly sections 96 to 99 (standard and special procedure) do not apply).
(8) The Tribunal may, on determining a reference, make recommendations as to the procedure followed by the Regulator or the Determinations Panel.
(9) An order of the Tribunal may be enforced—
(a) as if it were an order of a county court, or
(b) in Scotland, as if it were an order of the Court of Session.
(1) A party to a reference to the Tribunal may with permission appeal—
(a) to the Court of Appeal, or
(b) in Scotland, to the Court of Session,
on a point of law arising from a decision of the Tribunal disposing of the reference.
(2) “Permission” means permission given by—
(a) the Tribunal, or
(b) if it is refused by the Tribunal, by the Court of Appeal or, in Scotland, the Court of Session.
(3) If, on an appeal under subsection (1), the court considers that the decision of the Tribunal was wrong in law, it may—
(a) remit the matter to the Tribunal for rehearing and determination by it under section 103, or
(b) itself make a determination.
(4) An appeal may not be brought from a decision of the Court of Appeal under subsection (3) except with the leave of—
(a) the Court of Appeal, or
(b) the House of Lords.
(5) An appeal lies, with the leave of the Court of Session or the House of Lords, from any decision of the Court of Session under this section, and such leave may be given on such terms as to costs, expenses or otherwise as the Court of Session or the House of Lords may determine.
(6) Rules made under section 102 may make provision for regulating or prescribing any matters incidental to or consequential on an appeal under this section.
(1) This section applies where an application is made to the Tribunal for permission under section 104(2)(a) to appeal from a decision of the Tribunal disposing of a reference.
(2) If the person who constitutes, or is the chairman of, the Tribunal for the purposes of dealing with that application considers that the decision of the Tribunal disposing of the reference was wrong in law, he may set aside the decision and refer the matter—
(a) for rehearing and redetermination by the Tribunal under section 103, or
(b) for rehearing and determination under that section by a differently constituted Tribunal.
(1) The Lord Chancellor may by regulations establish a scheme governing the provision of legal assistance in connection with proceedings before the Tribunal.
(2) The legal assistance scheme may, in particular, make provision as to—
(a) the kinds of legal assistance that may be provided;
(b) the persons by whom legal assistance may be provided;
(c) the manner in which applications for legal assistance are to be made;
(d) the criteria on which eligibility for legal assistance is to be determined;
(e) the persons or bodies by whom applications are to be determined;
(f) appeals against refusals of applications;
(g) the revocation or variation of decisions;
(h) its administration and the enforcement of its provisions.
(3) Legal assistance under the scheme may be provided subject to conditions or restrictions.
(4) Those conditions may include conditions as to the making of contributions by the person to whom the assistance is provided.
(5) The Lord Chancellor must fund, out of money provided by Parliament, the costs of the scheme including the costs of legal assistance provided under it.
(6) In this Part “the legal assistance scheme” means any scheme in force by virtue of subsection (1).
Pensions Act 2004