FOI reference - FOI 2015-05-06
Date - 06/05/2015
- How many times have you exercised your powers under the Pensions Act 2004 and appointed an independent trustee?
- How many times has Dalriada been appointed by you as independent trustee?
- How much have Dalriada taken from schemes to which they have been appointed, for their own fees and legal fees?
Duty to confirm or deny whether TPR holds the information requested
I can confirm that The Pensions Regulator (TPR) holds the information you have requested.
Please note that, due to the manner in which TPR historically logged IT appointments, TPR only holds accurately reportable data back to 1 January 2010. As you have not specified a timescale in your request, I have therefore provided you with the information you have requested back to that date.
Information we are able to supply
How many times have you exercised your powers under the Pensions Act 2004 and appointed an Independent Trustee?
It may be helpful if I first explain that trustees are not generally appointed under the Pensions Act 2004 ("the Act”) but rather under the Pensions Act 1995 (“the 1995 Act”) which provides for the appointment of an independent trustee (IT) to a pension scheme. I have, therefore, treated your request as though it relates to the 1995 Act or the Act (please see ‘Duty to provide advice and assistance’ for further detail).
Since 1 January 2010, TPR has appointed an IT in respect of 184 appointments
(All figures provided in this response reflect the number of cases in which an IT appointment power has been exercised. This is not indicative of the number of schemes an IT has been appointed to as TPR can appoint a single IT to multiple schemes under one ‘appointment’).
How many times has Dalriada been appointed by you as independent trustee?
Since 1 January 2010 Dalriada has been appointed by TPR as IT in respect of 24 appointments.
How much have Dalriada taken from schemes to which they have been appointed, for their own fees and legal fees?
Please note that the data below is compiled from either the overall final fees reported to us by Dalriada upon completion of its appointment or, if the appointment is still ongoing, the total fees TPR has agreed with Dalriada for it to charge in order to complete its appointment.
Please also note that TPR does not hold data solely in respect of legal fees Dalriada has charged the schemes it is appointed to. TPR only holds data in respect of overall ‘adviser’ fees which includes such advice as legal, actuarial and administrator advice. All fees provided below are exclusive of VAT. Also, please note that not all the accrued fees as provided below will necessarily be taken from the schemes.
- Total Trustee fees: £4,465,426.66
- Total Adviser fees: £5,760,562.16
Duty to provide advice and assistance
I am mindful of the duty to provide advice and assistance to requesters, as far as it is reasonably practicable to do so. It therefore may be useful for me to explain in more detail how ITs are appointed by TPR and TPR’s Determinations Panel (“the Panel”).
TPR has a range of powers that it can use to intervene and help put things right, where necessary (such as appointing an IT to a scheme or schemes). Whilst TPR's staff have the discretion to appoint an IT in some prescribed circumstances, some IT appointments can only be exercised by the Panel.
The Panel, though a committee of TPR, is separate from TPR, in that it has a separately appointed membership and legal support. This enables it to make its decisions independently and impartially in considering all the evidence before it and providing each party with a reasonable opportunity to present their case.
Under s23 of the 1995 Act, TPR can (but is not obliged to) appoint an IT from its Trustee Register in relation to a trust scheme in circumstances where the employer has entered into an insolvency process. If we appoint in these circumstances, it is a non-reserved regulatory function so can be exercised within the regulatory arm of TPR.
TPR also has power to appoint an IT under sections 7(1) and 7(3) of the 1995 Act in circumstances where the employer has not entered into an insolvency process. Section 7(1) applies if the appointment is to replace a prohibited or disqualified trustee. An appointment may be made under section 7(3) if TPR is satisfied that it is 'reasonable' to do so on one of the four specified grounds. The four grounds are:
- 7(3)(a) - To secure that the trustees as a whole have, or exercise, the necessary knowledge and skill for the proper administration of the scheme
- 7(3)(b) - To secure that the number of trustees is sufficient for the proper administration of the scheme
- 7(3)(c) - To secure the proper use or application of the assets of the scheme, or
- 7(3)(d) - Otherwise to protect the interests of the generality of the members of the scheme
Sections 23 and 7(3)(b) can be exercised within the regulatory arm. Appointments under sections 7(3)(a), (c) and (d) are all reserved regulatory functions so must be exercised by the Panel.
TPR will always consider the best interests of scheme members when considering a trustee appointment and we have a structured process in place for identifying which trustees on our register have the relevant skills and experience for each appointment we make. Our process includes a tendering and review process which ensures that we select the trustee firm that will provide the best service in terms of time, cost and quality. This process is completed for each appointment TPR makes (whether by the regulatory arm or the Panel).
Please note that, whilst TPR already publishes the number of trustee appointments it has made in its annual report and accounts, this figure is not isolated to IT appointments but includes 'member appointments' and will therefore differ from the information I have provided above. A 'member appointment' is where TPR appoints a scheme member, typically the remaining member of their occupational scheme, to act as trustee of their own benefits in order to release those benefits in the absence of a solvent scheme employer.