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STATUTORY RULES OF NORTHERN IRELAND


2006 No. 161

PENSIONS

The Occupational Pension Schemes (Payments to Employer) Regulations (Northern Ireland) 2006

  Made 27th March 2006 
  Coming into operation 6th April 2006 


CONTENTS


PART 1

Citation, commencement and interpretation
1. Citation and commencement
2. Interpretation

PART 2

Schemes not in wind up
3. Schemes not in wind up
4. Schemes that are subject to Part IV of the 2005 Order - determination of assets and liabilities
5. Schemes that are subject to Part IV of the 2005 Order - valuation of assets and liabilities
6. Prescribed persons for the purposes of Article 37(3)(a)
7. Schemes that are subject to Part IV of the 2005 Order – valuation certificate and amount of payment to employer
8. Earmarked schemes
9. Period for which a valuation certificate is to remain in force
10. Notification to members
11. Notification to the Regulator

PART 3

Exemptions, transitional provisions and modifications
12. Exemptions
13. Transitional
14. Modifications in relation to earmarked schemes

PART 4

Schemes in wind up
15. Notice of proposal to distribute excess assets to the employer
16. Circumstances in which the Regulator must be satisfied that requirements of Article 76 are met
17. Additional requirement for purposes of Article 76

PART 5

Multi-employer schemes
18. Schemes with more than one employer

PART 6

Revocations
19. Revocations

  SCHEDULE 1— Actuary's Certificate - Valuation of Assets and Liabilities

  SCHEDULE 2— Revocations

The Department for Social Development makes the following Regulations in exercise of the powers conferred by Articles 37(3)(a), (b) and (g), (4), (5) and (8), 76(2), (3)(d) and (8), 122(3) and 166(1) to (3) of the Pensions (Northern Ireland) Order 1995[
1], and now vested in it[2], and Article 228(6)(a) of the Pensions (Northern Ireland) Order 2005[3].



PART 1

Citation, commencement and interpretation

Citation and commencement
     1. These Regulations may be cited as the Occupational Pension Schemes (Payments to Employer) Regulations (Northern Ireland) 2006 and shall come into operation on 6th April 2006.

Interpretation
    
2. —(1) In these Regulations—

    (2) In the application of—

to a scheme which has no active members, references to the employer have effect as if they were references to the person who was the employer immediately before the occurrence of the event after which the scheme ceased to have such members.

    (3) In these Regulations, any reference to a numbered Article is a reference to the Article of the Pensions (Northern Ireland) Order 1995 bearing that number.

    (4) For the purposes of these Regulations and notwithstanding section 39(2) of the Interpretation Act (Northern Ireland) 1954[6], where a period of time is expressed to begin on, or to be reckoned to begin on, a particular day, that day shall be included in the period.



PART 2

Schemes not in wind up

Schemes not in wind up
     3. —(1) Subject to paragraph (2) and regulations 12 to 14, the prescribed requirements for the purposes of Article 37(3)(b) (payment of surplus to employer) are that the scheme is not in wind up, and—

    (2) A scheme to which—

Schemes that are subject to Part IV of the 2005 Order - determination of assets and liabilities
     4. —(1) In the case of a scheme to which regulation 3(1)(a) applies, where the trustees propose to make a payment to the employer, either—

    (2) Where the trustees use a Part IV valuation—

    (3) Subject to paragraph (7), the assets of the scheme to be taken into account for the purposes of the written valuation specified in paragraph (1)(a) are the assets attributed to the scheme in the relevant accounts, excluding—

    (4) Subject to paragraph (6), the liabilities of the scheme to be taken into account for the purposes of the written valuation specified in paragraph (1)(a) are any liabilities—

    (5) For the purposes of paragraph (4)—

    (6) Where rights under an insurance policy are excluded under paragraph (3)(c), the liabilities secured by the policy shall be disregarded for the purposes of paragraph (4).

    (7) Where arrangements are being made by the scheme for the transfer to or from it of accrued rights and any pension credit rights, until such time as the trustees or managers of the scheme to which the transfer is being made ("the receiving scheme") have received assets of the full amount agreed by them as consideration for the transfer, it shall be assumed—

Schemes that are subject to Part IV of the 2005 Order - valuation of assets and liabilities
     5. —(1) In the case of a valuation specified in regulation 4(1)(a), and subject to paragraph (2), the value to be given to the assets of a scheme for the purposes of Article 37(3)(a) (payment of surplus to employer) is the value given to those assets in the relevant accounts, less the amount of the external liabilities.

    (2) The value to be given to any rights under an insurance policy not excluded under regulation 4(3) is the value the actuary considers appropriate in the circumstances of the case on the effective date.

    (3) The value to be placed on the liabilities of the scheme shall be the actuary's estimate of the value of the liabilities of the scheme on the effective date.

    (4) In paragraph (3), "estimate of the value of the liabilities of the scheme" means—

    (5) Where the actuary considers that it is not practicable to make an estimate in accordance with paragraph (4)(a), he shall make an estimate of the value of the liabilities of the scheme on the effective date, in such manner as he considers appropriate in the circumstances of the case.

    (6) Where the actuary's estimate of the liabilities of the scheme is made under paragraph (5), the valuation shall include a brief account of the principles adopted in making the estimate.

    (7) In paragraph (1), "the external liabilities" of a scheme are such liabilities of the scheme (other than liabilities within regulation 4(4)) as are shown in the net assets statement in the relevant accounts, and their amount shall be taken to be the amount shown in that statement in respect of them.

    (8) The assets of the scheme shall be valued, and the amount of the liabilities determined, by reference to the effective date.

Prescribed persons for the purposes of Article 37(3)(a)
     6. The prescribed persons for the purposes of Article 37(3)(a) (payment of surplus to employer) are in the case of a scheme that is subject to Part IV of the 2005 Order (scheme funding)—

Schemes that are subject to Part IV of the 2005 Order – valuation certificate and amount of payment to employer
     7. —(1) Where a written valuation prepared in accordance with regulation 4(1) shows that the value of the assets of the scheme is greater than the value of the scheme's liabilities, the prescribed person shall prepare a valuation certificate in the form prescribed in Schedule 1.

    (2) Where paragraph (1) applies, the maximum payment that may be made to the employer is, in the case of a valuation prepared in accordance with—

Earmarked schemes
    
8. —(1) In the case of a scheme to which regulation 3(1)(b) applies, a payment may only be made to the employer where all liabilities accruing in respect of a member, beneficiary or his estate have been—

    (2) Where paragraph (1) applies, the maximum payment that may be made to the employer is a payment no greater than the excess of the scheme assets in relation to that member after all the liabilities accruing in respect of that member have been secured or paid in full.

Period for which a valuation certificate is to remain in force
    
9. A valuation certificate shall remain in force—

from the effective date of the valuation.

Notification to members
    
10. —(1) Where the trustees of a scheme to which regulation 3(1)(a) applies propose to make a payment under Article 37(1)(a) (payment of surplus to employer), the prescribed requirements in accordance with which the notice referred to in Article 37(3)(g) shall be given are that—

    (2) Where a member requests a copy of the relevant valuation certificate under paragraph (1)(d), the trustees of the scheme shall provide this information within one month from the date that the request is received by them.

    (3) A notice under Article 37(3)(g) does not have to be given to any excluded person.

Notification to the Regulator
    
11. Where the trustees of a scheme to which regulation 3(1)(a) applies have made a payment in accordance with Article 37(1)(a) (payment of surplus to employer), they shall notify the Regulator that the payment has been made by no later than one week after the day on which the payment was made.



PART 3

Exemptions, transitional provisions and modifications

Exemptions
    
12. —(1) Articles 37 (payment of surplus to employer) and 76 (excess assets on winding up)[14] shall not apply to a scheme where—

    (2) Where such a guarantee has been given as is mentioned in paragraph (1)(a) or (b) in respect of only part of a scheme, Articles 37 and 76 shall apply as if that part and the other part of the scheme were separate schemes.

Transitional
     13. The prescribed requirements for the notice specified in Article 228(6)(a) of the 2005 Order (payment of surplus to employer: transitional power to amend scheme) are that the notice shall—

Modifications in relation to earmarked schemes
    
14. In relation to a scheme to which regulation 3(1)(b) applies, Article 37 (payment of surplus to employer) shall be modified as if in paragraph (3) sub-paragraphs (a) to (c), (f) and (g) were omitted.



PART 4

Schemes in wind up

Notice of proposal to distribute excess assets to the employer
    
15. —(1) The prescribed requirements for the notice specified in Article 76(3)(d) (excess assets on winding up) are set out in paragraphs (2) to (5).

    (2) Where the trustees or the employer propose to exercise the power in Article 76(1)(c), the trustees or, as the case may be, the employer, must take all reasonable steps to ensure that each member, except any excluded person, is sent a written notice divided into two parts, of the proposal in accordance with the following provisions of this regulation.

    (3) The first part of the notice shall—

    (4) The second part of the notice shall be given after the date specified in accordance with paragraph (3)(b) and at least three months before the power is exercised, and shall—

    (5) The parts of the notice under paragraph (3) or (4) shall be treated as having been given to a member where it has been sent by post to either—

Circumstances in which the Regulator must be satisfied that the requirements of Article 76 are met
    
16. —(1) For the purposes of Article 76(2) (excess assets on winding up), the prescribed circumstances are that—

    (2) Where notice has been given to a member in accordance with regulation 15(3), paragraph (1)(a)(i) shall only apply in the case of representations received by the Regulator from the member before the date specified in accordance with regulation 15(4)(b) (expiry date of the second part of the notice).

Additional requirement for purposes of Article 76
    
17. Where—

the trustees or, as the case may be, the employer shall obtain written confirmation from the Regulator that it has not received any representations or information referred to in regulation 16(1)(a) and that Article 76(4) (excess assets on winding up) accordingly, does not apply.



PART 5

Multi-employer Schemes

Schemes with more than one employer
    
18. —(1) Where—

these Regulations shall apply as if each section of the scheme were a separate scheme.

    (2) Condition A is that contributions payable to the scheme by an employer, or by a member in employment under that employer, are allocated to that employer's section (or, if more than one section applies to the employer, to the section which is appropriate in respect of the employment in question).

    (3) Condition B is that a specified part or proportion of the assets of the scheme is attributable to each section and cannot be used for the purposes of any other section.

    (4) In their application to a scheme—

Articles 37 (payment of surplus to employer) and 76 (excess assets on winding up) and these Regulations apply as if the section in relation to which those conditions have ceased to be satisfied were a separate scheme.

    (5) For the purposes of paragraphs (1) to (4), any provisions of the scheme by virtue of which contributions or transfers of assets may be made to make provision for death benefits are disregarded.

    (6) But if paragraph (1) or (4) applies and, by virtue of any provisions of the scheme, contributions or transfers of assets to make provision for death benefits are made to a section ("the death benefits section") the assets of which may only be applied for the provision of death benefits, the death benefits section is also to be treated as if it were a separate scheme for the purpose of Articles 37 and 76 and these Regulations.

    (7) For the purpose of this regulation, any provisions of a scheme by virtue of which assets attributable to one section may on the winding up of the scheme or a section be used for the purposes of another section are disregarded.

    (8) In the application of Article 37(3) to a scheme in relation to which there is more than one employer, sub-paragraph (e) of that paragraph shall have effect as if for "employer has asked", there were substituted "person whom the employers nominate to act as their representative for the purposes of this paragraph has asked, or, if no such nomination is made, all the employers have asked".



PART 6

Revocations

Revocations
    
19. The Regulations specified in column 1 of Schedule 2 are revoked to the extent specified in column 3.



Sealed with the Official Seal of the Department for Social Development on


27th March 2006.

L.S.


John O'Neill
A senior officer of the Department for Social Development


SCHEDULE 1
Regulation 7



SCHEDULE 2
Regulation 19


Revocations


Column 1 Column 2 Column 3
Citation Reference Extent of revocation
The Occupational Pension Schemes (Payments to Employers) Regulations (Northern Ireland) 1997 S.R. 1997 No. 96 The whole of the Regulations
The Personal and Occupational Pension Schemes (Miscellaneous Amendments) Regulations (Northern Ireland) 1997 S.R. 1997 No. 160 In the Schedule, paragraph 17
The Occupational Pension Schemes (Payments to Employers) (Amendment) Regulations (Northern Ireland) 1997 S.R. 1997 No. 473 The whole of the Regulations
The Occupational Pension Schemes (Winding up, etc.) Regulations (Northern Ireland) 2005 S.R. 2005 No. 171 In the Schedule, paragraph 11



EXPLANATORY NOTE

(This note is not part of the Regulations)


These Regulations prescribe the circumstances in which, and the extent to which, payments may be made from certain pension schemes to the employer in relation to that scheme ("the relevant employer") of the scheme.

Regulations 1 and 2 provide for the citation, commencement and interpretation.

Regulation 3 prescribes that no payment may be made under Article 37 of the Pensions (Northern Ireland) Order 1995 ("the 1995 Order") except in the case of the types of scheme specified in that regulation.

Regulation 4 prescribes that in the case of a scheme which is subject to the requirements of Part IV of the Pensions (Northern Ireland) Order 2005 ("the 2005 Order"), which is not a regulatory own funds scheme and which is not winding up, prior to a payment to the relevant employer being made there must be an actuarial valuation of the scheme's assets and liabilities. It also prescribes the assets and liabilities that shall be taken into account when making this valuation.

Regulation 5 prescribes the manner in which the actuary shall value the assets and estimate the value of the liabilities of the scheme.

Regulation 6 prescribes the persons who may prepare and sign a written valuation under Article 37(3)(a) of the 1995 Order.

Regulation 7 prescribes that where a valuation shows that the assets of the scheme exceed the liabilities of the scheme, then the maximum payment that may be made to the employer is the amount of that excess, and that where this is the case the actuary shall certify this on a form set out in Schedule 1.

Regulation 8 prescribes that in the case of a money purchase scheme that holds each member's fund under a separate insurance policy a scheme may consider making a payment to the relevant employer where the liabilities in relation to any particular member have been secured or paid in full, and the payment to the employer represents the excess of the assets produced by the insurance policy, over and above the member's entitlement to scheme benefits.

Regulation 9 specifies that, depending on the type of scheme, a valuation certificate shall be valid for a maximum period of either twelve or fifteen months from the date it is prepared.

Regulation 10 prescribes the information that the trustees of the scheme must provide to the scheme members where the trustees propose to exercise a power to make a payment to the relevant employer.

Regulation 11 prescribes the information that the trustees of the scheme must provide to the Regulator where a payment to the relevant employer is to be made.

Regulation 12 provides for exceptions to the requirements of Articles 37 and 76 of the 1995 Order.

Regulation 13 provides for transitional provisions in relation to schemes with existing powers to make payments to employers.

Regulation 14 modifies Article 37 of the 1995 Order in the case of an earmarked scheme.

Regulation 15 prescribes requirements in accordance with which notice shall be given to scheme members where the trustees plan to distribute a scheme surplus when a scheme is winding up.

Regulation 16 provides for circumstances where the Regulator must be satisfied that the provisions of Article 76 of the 1995 Order are satisfied.

Regulation 17 provides that where they have not received notification from the Regulator that the power to pay excess assets to the employer should not be exercised, then the trustees or employers in relation to the scheme should obtain written confirmation from the Regulator that it has not received any representations or information that could impact on payment of surplus assets upon wind up.

Regulations 18 provides for the application of Articles 37 and 76 of the 1995 Order in relation to a scheme with more than one employer.

Regulation 19 and Schedule 2 make consequential revocations.

Schedule 1 prescribes the form required for an actuarial certificate under regulation 7.

The Pensions (2005 Order) (Commencement No. 9) Order (Northern Ireland) 2006 (S.R. 2006 No. 95 (C. 7)) provides for the coming into operation of Articles 227, which substituted Article 37 of the 1995 Order, one of the enabling provisions under which these Regulations are made, and 228(6)(a) of the 2005 Order, another enabling provision under which these Regulations are made, for the purposes only of authorising the making of regulations, on 9th March 2006 and for all other purposes on 6th April 2006.

As these Regulations make in relation to Northern Ireland only provision corresponding to provision contained in regulations made by the Secretary of State for Work and Pensions in relation to Great Britain, the requirement to consult under Article 117(1) of the 1995 Order and Article 289(1) of the 2005 Order does not apply by virtue of paragraph (2)(e) of each of those Articles.


Notes:

[1] S.I. 1995/3213 (N.I. 22)); Article 37 was substituted by Article 227 of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1)); Article 76 is amended by paragraph 56 of Schedule 10 to that Orderback

[2] See Article 8(b) of S.R. 1999 No. 481back

[3] S.I. 2005/255 (N.I. 1)back

[4] See section 1 of the Pensions Act 2004 (c. 35)back

[5] Article 41 was amended by paragraph 10(1) of Schedule 5 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4 (N.I.)), paragraph 22 of the Schedule to S.R. 2005 No. 434 and paragraph 46 of Schedule 10 and Schedule 11 to the Pensions (Northern Ireland) Order 2005back

[6] 1954 c. 33 (N.I.)back

[7] Part IV was modified by Schedule 2 to S.R. 2005 No. 568 and regulation 5(1) of S.R. 2005 No. 570back

[8] See Article 203(2)(a) of the Pensions (Northern Ireland) Order 2005back

[9] S.R. 2005 No. 568back

[10] Article 40 was amended by Article 152 of S.I. 2001/3649, Article 26 of S.I. 2004/355 and paragraph 45 of Schedule 10 to the Pensions (Northern Ireland) Order 2005back

[11] Article 74(3)(c) was amended by Article 60 of S.I. 2002/1555back

[12] The Faculty of Actuaries is located at Faculty of Actuaries, Maclaurin House, 18 Dublin Street, Edinburgh EH1 3PPback

[13] The Institute of Actuaries is located at Institute of Actuaries, Staple Inn Hall, High Holborn, London WC1V 7QJback

[14] S.I. 1995/3213 (N.I. 22); Article 37 is substituted by Article 227 of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1)); Article 76 is amended by paragraph 56 of Schedule 10 to that Orderback



ISBN 0 337 96463 7


 © Crown copyright 2006

Prepared 4 April 2006


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