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United Kingdom Statutory Instruments


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URL: http://www.bailii.org/uk/legis/num_reg/2006/20060802.html

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STATUTORY INSTRUMENTS


2006 No. 802

PENSIONS

The Occupational Pension Schemes (Payments to Employer) Regulations 2006

  Made 16th March 2006 
  Laid before Parliament 16th March 2006 
  Coming into force 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 3 of the 2004 Act – determination of assets and liabilities
5. Schemes that are subject to Part 3 of the 2004 Act – valuation of assets and liabilities
6. Prescribed persons for the purposes of section 37(3)(a) of the 1995 Act
7. Schemes that are subject to Part 3 of the 2004 Act – 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 section 76 of the 1995 Act are met
17. Additional requirement for purposes of section 76 of the 1995 Act

PART 5

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

PART 6

Revocations
19. Revocations

  SCHEDULE 1  
  SCHEDULE 2  

The Secretary of State for Work and Pensions makes the following Regulations in exercise of the powers conferred by sections 37(3)(a), (b) and (g), (4), (5) and (8), 76(2), (3)(d) and (8), 124(1), 125(3) and 174(2) and (3) of the Pensions Act 1995[
1] and sections 251(6)(a) and 318(1) of the Pensions Act 2004[2].

     In accordance with section 120(1) of the Pensions Act 1995 and section 317(1) of the Pensions Act 2004 the Secretary of State for Work and Pensions has consulted such persons as he considers appropriate.



PART 1

Citation, commencement and interpretation

Citation and commencement
     1. These Regulations may be cited as the Occupational Pension Schemes (Payments to Employer) Regulations 2006 and shall come into force 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.



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 section 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 3 of the 2004 Act – 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 trustees use a Part 3 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 actuarial 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 3 of the 2004 Act – 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 section 37(3)(a) of the 1995 Act (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 the actuary 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 must 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 section 37(3)(a) of the 1995 Act
     6. The classes of prescribed person for the purposes of section 37(3)(a) of the 1995 Act are in the case of a scheme that is subject to Part 3 of the 2004 Act (scheme funding)—

Schemes that are subject to Part 3 of the 2004 Act – 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 section 37(1)(a) of the 1995 Act, the prescribed requirements in accordance with which the notice referred to in section 37(3)(g) of the 1995 Act must be given are—

    (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 section 37(3)(g) of the 1995 Act 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 section 37(1)(a) of the 1995 Act, 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) Sections 37 and 76 (excess assets on winding up) of the 1995 Act 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, sections 37 and 76 of the 1995 Act, 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 section 251(6)(a) of the 2004 Act (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, section 37 of the 1995 Act is modified as if in subsection (3) 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 section 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 section 76(1)(c) of the 1995 Act, 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 must—

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

    (5) The parts of the notice under paragraphs (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 requirements of section 76 of the 1995 Act are met
    
16. —(1) For the purposes of section 76(2) of the 1995 Act 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 notice).

Additional requirement for purposes of section 76 of the 1995 Act
    
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 section 76(4) of the 1995 Act 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—

sections 37 and 76 of the 1995 Act 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 sections 37 and 76 of the 1995 Act and these Regulations.

    (7) For the purposes 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 section 37(3) of the 1995 Act to a scheme in relation to which there is more than one employer, paragraph (e) of that subsection has effect as if for the words "employer has asked", there were substituted the words "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 to these Regulations are revoked to the extent specified in column 3.



Signed by authority of the Secretary of State for Work and Pensions.


Stephen C. Timms
Minister of State, Department for Work and Pensions

16th March 2006



SCHEDULE 1
Regulation 7


ACTUARY'S CERTIFICATE – VALUATION OF ASSETS AND LIABILITIES




SCHEDULE 2
Regulation 19


Revocations for the purposes of Regulation 19


Column 1 Column 2 Column 3
Regulations revoked References Extent of revocation
The Occupational Pension Schemes (Payments to Employers) Regulations 1996 S.I. 1996/2156 The whole of the Regulations
The Personal and Occupational Pension Schemes (Miscellaneous Amendments) Regulations 1997 S.I. 1997/786 Paragraph 14 of Schedule 1 and Schedule 2 to the Regulations (in so far as it relates to the Occupational Pension Schemes (Payments to Employers) Regulations 1996)
The Occupational Pension Schemes (Payments to Employers) Amendment Regulations 1997 S.I. 1997/2559 The whole of the Regulations
The Occupational Pension Schemes (Winding up etc) Regulations 2005 S.I. 2005/706 Regulation 14 (in so far as it relates to the Occupational Pension Schemes (Payments to Employers) Regulations 1996) and Paragraph 11 of the Schedule to the Regulations



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.

Regulation 3 prescribes that no payment may be made under section 37 of the Pensions Act 1995 (c.26) ("the 1995 Act") 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 3 of the Pensions Act 2004 (c.35) (scheme funding), which is not a regulatory own funds scheme and which is not winding up, prior to a payment to the relevant employer being made the scheme shall conduct an actuarial valuation of its assets and liabilities and 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 qualifications required for a person to prepare and sign a written valuation under section 37(3)(a) of the 1995 Act.

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 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 provides that a valuation certificate shall be valid for a maximum period of either 12 or 15 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 contained in these Regulations in respect of schemes which are not prescribed in regulation 3 and Crown guaranteed and partially guaranteed schemes.

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

Regulation 14 modifies section 37 of the 1995 Act in the case of an earmarked scheme.

Regulation 15 prescribes requirements in accordance with which notice must 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 section 76 of the 1995 Act 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 a surplus assets upon wind up.

Regulation 18 provides for the application of sections 37 and 76 of the Pensions Act 1995 in relation to a scheme with more than one employer.

Regulation 19 specifies that certain enactments are revoked to the extent stated in Schedule 2 to the Regulations.

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

Schedule 2 specifies the Regulations that are revoked. These are the Occupational Pension Schemes (Payments to Employers) Regulations 1996 (S.I. 1996/2156) and all amending regulations.

An assessment of the impact on business, charities and the voluntary sector of the provisions of these Regulations was included in the Regulatory Impact Assessment that accompanied the Pensions Act 2004. A copy of the assessment has been placed in the libraries of both Houses of Parliament. Copies may also be obtained from the Better Regulation Unit, Department for Work and Pensions, 4th floor, Adelphi, 1-11 John Adam Street, London WC2N 6HT.


Notes:

[1] 1995 c.26. Section 37 was substituted by section 250 of the Pensions Act 2004 (c.35). Section 76 was amended by paragraphs 34 and 62 of Schedule 12 and Schedule 13 to the Pensions Act 2004. Section 124(1) is cited for the meaning there given to "prescribed" and "regulations".back

[2] 2004 c.35. Section 318(1) is cited for the meaning there given to "modifications", "prescribed" and "regulations".back

[3] Section 41 was amended by section 1(2)(a) of the Employment Rights (Dispute Resolution) Act 1998 (c.8), paragraph 12(1) of Part I to Schedule 5 of the Child Support, Pensions and Social Security Act 2000 (c.19), paragraphs 34 and 52 of Schedule 12, and Part I of Schedule 13 to the Pensions Act 2004 and S.I. 2005/2053 and 3331.back

[4] See section 224(2)(a) of the Pensions Act 2004. Part 3 of the Pensions Act 2004 is modified by S.I. 2005/3377 and 3380.back

[5] S.I. 2005/3377.back

[6] Section 74(3)(c) was amended by S.I. 2001/3649.back

[7] The Faculty of Actuaries is located at Faculty of Actuaries, Maclaurin House, 18 Dublin Street, Edinburgh EH1 3PP.back

[8] The Institute of Actuaries is located at Institute of Actuaries, Staple Inn Hall, High Holborn, London WC1V 7QJ.back



ISBN 0 11 074349 0


 © Crown copyright 2006

Prepared 22 March 2006


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