Pensions: what's coming?
AMENDMENTS
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Great care always needs to be taken with scheme amendments, in particular to ensure that they comply with statutory restrictions and the requirements of scheme amendment powers. The recent case of Virgin Media v NTL Pension Trustees highlighted a potential issue for amendments made between 6/4/97 and 6/4/16 where a scheme was contracted-out on the reference scheme test basis. The High Court held that where written actuarial confirmation that the reference scheme test would still be met was not obtained, any chances relating to benefits covered by the test would be void. The decision is being appealed. BBC v BBC Pension Trust Ltd considered a restriction in an amendment power which restricted amendments affecting members’ “interests”. Interests was interpreted widely by the court as applying to accrued and future service rights. This is also going to the Court of Appeal. Two recent cases further considered restrictions in amendment powers. Newell Trustees v Newell Rubbermaid UK Services Ltd concerned a restriction on amendments which “would prejudice or impair the benefits accrued” and held that this did not prevent a conversion of DB benefits to DC as some members were better off but it did prevent breaking the salary link. Avon Cosmetics v Dalriada Trustees Ltd considered how the effects of an amendment which made some members worse off could be invalidated for only those members whilst still being preserved for others through the use of an underpin. Key documentsVirgin Media: BBC: Newell: Avon: |
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AUTOMATIC ENROLMENT
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Employers have a duty to auto-enrol workers who are aged 22 or over and have earnings of more than £10,000 and to pay contributions on their behalf. Minimum contributions and benefits are calculated by reference to “qualifying earnings” which are currently between £6,240 and £50,270. A new Act allows for regulations to change the existing age condition (to reduce it to 18) and the definition of qualifying earnings (to reduce the threshold to £0 so contributions are paid from the first pound earned). The Government has said that that it intends consult on the detailed implementation of these changes “at the earliest opportunity”. There will be no change to the £10,000 earnings threshold to qualify for auto-enrolment. The Government also said in November 2023 that it intends to work with TPR to produce guidance for employers on the factors that employers should consider when selecting an auto-enrolment scheme and, in particular, focusing on the need to balance costs, value and service rather than just on costs. Key documents
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BREXIT
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The retained EU Law Act means that from 31 December 2023, specified pieces of UK law that are derived from European law will cease to be in force. No pensions-specific pieces of law are being repealed. In addition, European case law and European law principles will cease to be binding on UK Courts. This may have more of an impact on pension schemes as much of the equality case law we have is based on EU principles. The Government has also issued regulations which will protect much of the existing legal position in relation to PPF compensation and some equality issues Key documents |
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COLLECTIVE DEFINED CONTRIBUTION SCHEMES
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The Government has said that it intends to move forward with the expansion of Collective Defined Contribution (CDC) Schemes which offer both accumulation and decumulation and will allow commercial multi-employer schemes where the employers are not associated with one another. The Government is also continuing to consider the possibility of CDC schemes which provide decumulation-only. In particular, there were a number of references to the potential role of CDC in decumulation in the Government's response to consultation on small DC pots, and its possible role as a scheme for life, allowing members to accrue benefits in a single scheme throughout their working lives. Key documents |
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CONSOLIDATION AND DERISKING - DB
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A consultation paper was issued on 17 July 2023 as part of the Mansion House Reforms. It was looking at what the statutory regime for “superfunds” should be and the features they will need to have. According to the consultation, superfunds will be primarily aimed at schemes that are 70-90% funded on a buy-out basis and are unlikely to target very small schemes at the outset. Prior to superfund legislation coming into force, the Pensions Regulator has updated its guidance for both superfunds and employers and trustees considering transfer to superfunds as an option. In November 2023, Clara announced that the first scheme had transferred to it. The Government is consulting on setting up a public sector consolidator to be run by the PPF by the end of 2026. The consolidator would be available to schemes that cannot access buy-out or a commercial consolidator and would provide a small number of standardised benefit structures. The PPF has issued a design document setting out more detail on how this would all work. TPR has also issued a blog post setting out its expectations in relation to capital backed journey plans and similar arrangements and that schemes seeking to use them should seek clearance in accordance with the principles set out in its superfund guidance. Key documents
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DASHBOARDS
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Legislation for the dashboards is set out in the Pension Schemes Act 2021 and regulations. Further detail on the information that schemes will need to provide and the timescales for doing so are set out in regulations. In addition, schemes will also need to have regard to technical standards issued by the Money and Pensions Service to ensure that they can connect to the dashboards. An update from the Pensions Dashboards Programme suggests that the first connection deadline is unlikely to be before late 2024/early 2025. The long-stop connection deadline for all schemes in scope is 31 October 2026. Key documents |
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DATA PROTECTION AND CYBER SECURITY
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On Brexit, GDPR became UK GDPR and everything continued broadly as it was. However, in 2021, the Government began consultation on reform to the UK data protection laws and confirmed it intended to go forward with reforms which reduced the burden on industry and delivers better outcomes to individuals. A new data protection and digital information bill is currently making its way through Parliament. In December 2023, TPR issued revised guidance on cyber security. The guidance sets out the governance that TPR expects schemes to have in place around cyber security. It asks trustees, providers and advisers to “report significant cyber incident[s] to [it] on a voluntary basis”. There is also a reminder that where an incident affects a scheme’s ability to comply with legal requirements, there may also be an obligation to report to TPR. PR’s General Code of Practice also contains details about TPR’s expectations around cyber security and data protection compliance. Key documents |
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DC GOVERNANCE
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As there is continuing concern about the extent to which small DC schemes provide value, the Government and regulators intend to proceed with the introduction of a new Value for Money (VFM) Framework. This would require most DC trustees to publicly disclose key metrics and service standards and to assess the VFM of their scheme against the metrics published by other schemes. The FCA will also consult on a new value for money framework which will apply to contract based schemes in the first half of 2024. The Government has said it intends to legislate to impose a duty on DC trustees to offer decumulation services to members at the point they access benefits. It is also proposed that trustees will be required to provide a default decumulation option, although this can be done in partnership with another supplier. Key documents |
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FUNDING
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The Pension Schemes Act 2021 set out the framework for changes to the existing scheme funding regime which will require schemes to focus more on journey planning and their endgame and cooperate with the employer in drafting a funding and investment strategy to get there. The Funding and Investment Strategy Regulations sets out more detail on needs to be included in the funding and investment strategy and the factors that need to be taken into account. The regulations envisage that by the point of “significant maturity” (defined in the draft code), schemes will no longer be reliant on employer covenant. TPR has also issued a draft code of practice setting out how it expects schemes to comply with these new requirements and how it envisages that schemes will de-risk as they reach maturity and factors to consider when assessing covenant. More guidance is expected on covenant assessments. Key documents |
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GENERAL CODE
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The General Code amalgamates 10 of the Regulator’s 16 codes of practice, so much of the content will be familiar. It does not include the existing codes on funding (which is due to be re-issued in revised form later in 2024), modification of subsisting rights, notifiable events, material detriment or the specialist codes of practice for master trusts and collective defined contribution schemes. Legislation requires trustees to “establish and operate an effective system of governance… [which is] proportionate to the size, nature, scale and complexity of the activities of the… scheme”, regardless of scheme size. The General Code identifies areas of governance, including policies and processes, that need to be addressed to ensure that trustees comply with these obligations. All schemes need to review their governance systems but trustees of schemes with 100 or more members should carry out a formal “own risk assessment” of how well their system of governance is working, and the way potential risks are managed. This should be done every three years and the first one should be completed within 12 months of the end of the first scheme year starting after the General Code comes into force or, if later, either 15 months from the date on which next actuarial valuation is due or the due date for the next chair’s statement. Key documents |
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GMP EQUALISATION
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In 2018, the High Court confirmed in Lloyds that schemes have an obligation to equalise for inequalities caused by GMPs in respect of service from 17 May 1990 (the date of the European Court decision in Barber which confirmed that pensions could not discriminate on grounds of sex). This was followed by a further decision in 2020 on obligations in relation to past transfers which decided that members who took a CETV may be entitled to a top-up transfer payment. A number of tax issues arose in relation to rectifying accrued rights and past payments and HMRC have issued guidance on this. Key documents |
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INFLATION - RPI AND CPI
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In November 2020, the Government issued a response to consultation confirming that, from 2030, RPI will be calculated using the same methods and data sources as CPIH. Given the limited availability of CPI-linked instruments, many DB pension schemes use RPI-linked gilts and RPI derivative markets to hedge the inflation risk attached to their CPI-linked liabilities by reference to assumptions as to the extent to which RPI will exceed CPI. Those schemes may see a negative impact on their funding position as a result of this intended change. Key documents |
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INVESTMENT (INCLUDING ESG)
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Legislation was introduced in 2021which required authorised master trusts and schemes with assets of £1billion or more to manage and report on climate-related risks and opportunities. In 2023, TPR carried out a review of the climate change reports produced so far and concluded there were some areas for improvement including a failure to disclose strategy, scenario analysis and metrics at the appropriate level. In the wake of the LDI crisis in 2022, TPR has issued guidance for trustees on the use of leveraged LDI. In addition, the Bank of England’s Financial Policy Committee and the Work and Pensions Committee recommended that TPR should be given a role in relation to ensuring financial stability. The Government also continues to look at ways that it can encourage schemes to invest in productive finance and statements of investment principles for default funds must set out the trustees’ policy on investing in illiquid assets. Trustees must explain why they have the policy they do and give more information in relation to any illiquid assets they intend to hold. Key documents |
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NOTIFIABLE EVENTS
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The Pension Schemes Act 2021 contains legislation (not yet in force) which would require scheme sponsors and those connected or associated with them to give TPR and trustees early warning of corporate events that might have an impact on a DB scheme. Draft regulations providing the detail of these new requirements were issued for consultation in 2021. They would have required notification of various corporate events at the point at which a “decision in principle” was made in relation to them. The Government received a considerable number of responses to the consultation pointing out potential issues with the regulations and no final version has yet been issued. TPR will consult on updates to Code of Practice 2 (Notifiable Events) and accompanying guidance once DWP have published the final version of the regulations. Key documents |
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PPF LEVY
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The PPF has published details of the levy for the 2024/25 levy year. No changes of substance have been made and it is anticipated that most schemes will see a reduction in the risk-based levy. The PPF also invited views on levy options for future years to ensure that the risk-based element of the levy is not increasingly collected from a decreasing number of poorly-funded schemes. Key documents |
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SMALL POTS
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DWP has been considering what to do with small deferred DC pots in default funds in schemes used for auto-enrolment. These are increasingly expensive for the industry to administer. In November 2023, the Government confirmed that it would proceed with a solution based on transferring benefits to one of a number of default consolidators. The framework will also provide for a central clearing house to be responsible for matching deferred pots with a member’s chosen consolidator. The clearing house would also undertake communication with members where they have not previously chosen a consolidator. Where no active decision is made by a member, the clearing house would be responsible for allocating them to one of the authorised consolidators. A deferred small pot will be one of £1,000 or less in an auto-enrolment default fund into which no contributions have been paid for at least 12 months. Key documents |
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SURPLUS
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In July 2023, the Government asked for evidence on whether allowing extraction of surplus before wind-up might encourage more risk to be taken in DB investment strategies and what the risks of this might be. In February 2024 the Government launched a consultation looking at how it could facilitate the refund of surplus in an ongoing scheme, including introducing new powers to allow refunds and protecting members through requiring minimum funding levels before a refund can be made. The Chancellor also said in the 2023 Autumn statement that he will reduce the rate of tax on refunds of surplus from 35% to 25% with effect from 6 April 2024. Key documents |
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TAX
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Following the Autumn statement in November 2023, the Finance Act 2024 has now received Royal Assent and will abolish the lifetime allowance with effect from 6 April 2024. In addition:
Key documents |
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TRANSFERS
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In November 2021, regulations introduced new conditions that must be satisfied before trustees can comply with a member’s request for a statutory transfer payment. The regulations categorised risks as giving rise to red or amber flags. No transfer can be made where there is a red flag. Where there is an amber flag, members must be referred to guidance from MoneyHelper. The Government had a statutory obligation to review the regulations after 18 months and consider if they were working as intended and still fulfilled the policy intention. Following significant feedback from the industry, it noted material concerns with the amber flag relating to overseas investments in the receiving scheme and the red flag where an incentive is offered to the member. The Government said that it would “conduct further work with the pensions industry and the Pensions Regulator to consider if changes could be implemented to the regulations to improve the pension transfer experience without undermining the policy intent”. In the meantime, the Pensions Ombudsman has determined that where a member disclosed that a receiving scheme invested in “global funds” and the transferring trustees decided this was an amber flag and referred him to MoneyHelper, the transferring trustees “did not act unreasonably”. Key documents |
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TRUSTEES AND FIDUCIARY DUTIES
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In a response to a call for evidence earlier in the year, the Government said in November 2023 that the evidence it had received suggest that “the majority of trustees are well-supported, knowledgeable, and hard-working”. However, the Government believes that trustees and others would benefit from more support, guidance and training. It proposes to take action around:
Key documents |
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