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2012 is set to be a memorable year, being the year of the
Queen’s Diamond Jubilee and the London Olympics. It will also be a
notable one on the pensions front, with the first workers being
subject to auto-enrolment. Here we look at what other significant
changes are likely to affect the pensions landscape.
New Employer Debt Regulations are due to come into force on 27
January 2012, introducing a new Flexible Apportionment Arrangement
(FAA). This will provide an additional mechanism for dealing with
the liabilities of an employer withdrawing from a multi-employer
defined benefit (DB) scheme and is intended to assist in dealing
with employer debts triggered by corporate restructurings.
The new FAA will allow the
pension liabilities of an exiting employer to be apportioned to one
or more employers staying in the scheme, who effectively step into
the shoes of the exiting employer. The scheme trustees, the exiting
employer and employer(s) to whom liabilities are apportioned all
need to agree to the FAA.
Under the FAA, an employer
debt need not be calculated on each occasion on which an employer
ceases to employ an active member of the scheme. This is a
significant advantage over the existing employer debt apportionment
As with the current Scheme Apportionment Arrangement (SAA),
trustees must still carry out a funding test and be satisfied
Like the SAA, entering into an
will be a notifiable event.
The new Regulations also allow trustees to extend the grace
period within which a leaving employer can delay triggering an
employer debt if it intends to employ active members again from 12
months to up to 36 months. Employers will also have a more
practical two months rather than the current month to give trustees
notice of their intention to rely on a grace period.
On 6 April 2012, the Lifetime Allowance (LTA) falls to £1.5
million. Individuals who think their total pension savings may
exceed this amount have until that date to apply to HM Revenue
& Customs (HMRC) for “fixed protection” (up to a maximum of
£1.8 million). Without fixed protection, benefits above the
LTA will be subject
to a one-off 55 per cent tax charge if taken as a lump sum or 25
per cent if taken as a pension.
After a summer celebrating (we hope) Britain’s sporting
successes, auto-enrolment will take centre stage.
From 1 October 2012, employers must begin to auto-enrol eligible
workers into a qualifying pension scheme. The requirement will be
phased in over a number of years (probably four), with the largest
employers first. Following an announcement by the Government last
November of a delay to the implementation of the requirement for
small businesses, the implementation dates for employers with fewer
than 3,000 employees are currently being revised.
The Department for Work and Pensions (DWP) is consulting on
raising both the earnings trigger and the qualifying earnings band.
Consultation closes on 26 January. We anticipate the earnings
trigger will rise to £8,105 and the qualifying earnings band will
change to £5,564 – £39,853.
Employers have a choice as to the scheme into which they
auto-enrol employees. DB
schemes must provide certain minimum benefits and a minimum level
of contributions must be paid to defined contribution (DC) schemes.
Where a DC scheme
is used, employers and their auto-enrolled workers must pay pension
contributions, which will increase over time:
The advent of auto-enrolment is likely to see an increased focus
by employers on rationalising benefits, which may be provided on
different bases and under several schemes, depending on when a
person started employment.
From 6 April 2012, individuals aged 60 or over will be able to
commute personal pension plan pots of £2,000 or less. Schemes can
ignore both the value of the individual’s total pension savings and
the value of any trivial commutation payments from occupational
pension schemes. However, an individual can only receive two of
these lump sum payments in their lifetime. For members who have not
drawn benefits, 25 per cent of the payment will be tax free, with
the remaining 75 per cent chargeable to income tax as pension
income. For pensioners, the full payment will be chargeable to
income tax as pension income.
As part of the proposed abolition of short-service refunds from
schemes, the DWP is also consulting
on how to improve transfers between schemes and deal with small
pension pots. Consultation ends on 23 March 2012. Measures proposed
Protected rights will be abolished from 6 April 2012. All
certificates will be cancelled. Scheme members will be contracted
back in and able to build up rights under the state second pension
(S2P). During the three-year transitional period to April 2015,
HMRC can pay
contracted-out rebates and adjust NI contribution records if
Readers may recall the EU Court of Justice’s ruling last year
in the Test-Achats case. The Court ruled that insurers
cannot use gender-specific factors in setting premiums and benefits
for policies entered into after 21 December 2012. The Government is
consulting until 1 March on changes to the Equality Act 2010 aimed
at implementing the judgment into UK law. Schemes that provide for
internal annuitisation of DC pots may wish to consider
whether they should also use gender-neutral rates.
A DB pension scheme
is fundamentally about paying specific benefits to individuals at a
certain point in time. Getting this basic task right requires
trustees to have complete and accurate membership data. Inaccurate
or incomplete data may result in extra costs in having to deal with
member complaints and correct member payments, and may also
complicate or restrict risk reduction exercises such as member
buyouts and buy-ins.
The Pension Regulator’s guidance sets certain data targets with
which trustees should comply by the end of 2012. Schemes must
achieve at least 95 per cent accuracy for common data – data that
uniquely identifies individual members such as name, National
Insurance number and date of birth. The target is 100 per cent for
members who joined a scheme after June 2010.
Trustees also need to set high targets for conditional data,
which varies by the type of scheme and its design, all to be
completed by December 2012. Conditional data includes:
Vigorous lobbying against the application of a Solvency II type
requirement to pension schemes is likley to continue given the
estimate that it could increase scheme funding requirements by
around half a trillion pounds.
Increasing pension schemes investment in infrastructure was a
key part of Chancellor George Osborne’s Autumn Statement. A
framework to progress the infrastructure plan will be revealed in
the 2012 Budget in March.
Until then, officials from HM Treasury, the National Association
of Pension Funds and the Pension Protection Fund (PPF) will meet at
least twice a month to develop the framework.
Last year, Rolls-Royce became the 12th FTSE 100
company to complete a longevity risk transfer deal for its pension
scheme. Blue-chip companies have now entered into longevity swaps
covering over £11 billion of liabilities. 2012 is likely to see a
continued focus on pensions risk management and in particular the
use of longevity swaps as a key risk management tool for both
trustees and sponsors.
Last year saw the Government express its increasing concern that
enhanced transfer value (ETV) exercises were being used in a manner
contrary to the interests of members. The Government has indicated
that a code of conduct on ETV exercises will be published
this summer, including a requirement for employers to pay for
independent financial advice for members. The FSA and the Pensions
Regulator will enforce the code.
The PPF is
conducting a pilot study to equalise Guaranteed Minimum Pensions
(GMPs) for schemes in an assessment period and those where members
are already receiving compensation. We understand that the
its approach with the DWP before starting
Clearer proposals regarding the requirement to equalise
likely to appear later this year and reflect the PPF’s experience from the
In the first pensions case to reach the Supreme Court
(Houldsworth v. Bridge Trustees) the Court decided that
money purchase benefits can include benefits where the benefit
liability exceeds the value of assets held to provide the benefit.
In a last minute change to the Pensions Act 2011, the Government
introduced a new definition of “money purchase benefits” to reverse
the effect of the judgment, making it clear that benefits cannot be
regarded as money purchase benefits where they can be subject to a
funding shortfall. Controversially the change is stated to take
effect from the beginning of 1997.
The new definition is not yet in force and the Government
intends to consult on regulations making consequential and
transitional changes. The terms of the proposed regulations will
need to be considered carefully by schemes that provide what have
generally been considered DC benefits subject to some sort
of benefit underpin, investment guarantee or internal
This year is likely to see the courts deciding some key issues
relating to pension schemes.
In 2010, the Determinations Panel of the Pensions Regulator
determined that Financial Support Directions (FSDs) should be
issued against several Nortel and Lehman companies.
There is a dispute as to where an FSD ranks in the priority
of claims payable by an insolvent company. Last year the Court of
Appeal upheld the High Court’s decision that FSDs issued against
companies after they enter administration (or a liquidation not
immediately preceded by administration) are to be treated as an
expense of administration/liquidation, ranking ahead of unsecured
creditors. The consequences of this are that in many cases the
claims of unsecured creditors will be wiped out and companies with
DB pension schemes may
now find the availability of credit more complicated. The Supreme
Court is expected to rule on the issue towards the end of the
The Upper Tribunal will hear an appeal against the imposition of
the FSDs in
Trustees will be hoping for clarity on whether DB schemes should pay VAT on their investment management
services. Several questions have been referred to the
EU Court of Justice, but
no hearing date has been announced as yet.
These two cases concern important points of legal principle
about the circumstances in which the court will set aside a
decision of trustees. In March last year, the Court of Appeal held
that what has been known as the rule in Hastings-Bass –
where the court will set aside the exercise of a trustee power that
has an effect different from that intended and where the trustees
would not have exercised the power as they did had they taken into
account all relevant and no irrelevant matters when exercising the
power – is not good law.
The Supreme Court is expected to hear appeals on the cases
towards the end of the year.
Finally, unions lost their High Court case challenging the
Government’s switch of pension increases in public sector schemes
from RPI to
statements made by union representatives immediately after the
hearing, we expect a Court of Appeal hearing later this year.
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