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FOI reference - FOI 2016-11-30
Date - 30/11/2016

Request

  1. What is the current total number of visits to The Pension Regulator's (TPR) employer automatic enrolment support process that have then used the provider links on the choose a pension scheme web page, and how does that break down across each provider listed.
  2. Has the introduction of the randomised order of the provider list had an effect on the proportion of visits linking to each provider?
  3. What is the total value of Escalating Penalty Notices issued and paid?
  4. What is the average number of days that Escalating Penalty Notices have applied?
  5. Are you able to provide a proportion of the Fixed Penalty Notices upheld which are due to failure to complete the declaration of compliance?
  6. Are you able to provide a breakdown of the pension providers associated with employers that have had a Fixed Penalty Notice applied, and how many have no provider at that stage?
  7. On the declaration there is now a scheme drop down with the 10 most used providers by numbers of declaration submitted. Would you confirm current providers listed please? Also whether they're listed alphabetically, by numbers of declarations, or detail an alternative method of ordering.

Response

I can confirm that we hold the information you have requested. However, we are unable to supply some of the information requested for the reasons set out below.

Information we are able to supply

I have answered your questions in turn below stating the information we are able to provide or where we are not I have explained why and outlined the exemption we have applied.

Q1 and Q2 – in answer to your first part of question 1, we can confirm that between 1 April and 29 November 2016 there were 127,206 visits to the choose a pension scheme web page.

In relation to the second part of question 1 and for question 2, the information is exempt from disclosure under section 43 (2) of the Freedom of Information Act (FoIA) commercial interests.

‘Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).’

This exemption is engaged for the following reasons:

TPR decided to publish a list of pension scheme providers on its website in response to a very specific set of circumstances (that being that employers subject to the duties under the Pensions Act 2008 called very clearly for assistance in identifying suitable schemes to use to meet their duties), and after very careful consideration of the impact on competition within the market. In so doing a decision was also taken to rotate the list every two weeks to ensure there were no adverse impact in terms of competition and / or on commercial interests of the schemes listed, or at least, if there was potential for such adverse impact that might be minimised, if not eradicated.

Disclosing the information requested has potential to undermine the careful considerations, checks and balances taken into account prior to deciding to publish the list which is not in the public interest. This is because the information if disclosed could influence the market in ways not intended or justified. We consider that publishing the information requested (at Q2 and Q3) would be likely to potentially negatively impact the commercial interests and / or competition in the pension provider market which would not be in the public interest, and was not the intention behind publication of the list.

Whilst we recognise that there may be a public interest in transparency and knowing the impact of our approach, we nevertheless consider the public interest in ensuring as far as is possible, i. a level playing field, ii. that providers are able to compete fairly, iii. that there is minimal impact on the market for pension schemes and the commercial interests of those providers, through actions of TPR outweighs any public interest in disclosure of the information requested in the above questions. Accordingly, we consider the public interest in disclosure is outweighed by the public interest in maintaining the exemption in section 43(2) on this occasion.

Q3 – I can confirm that we hold the information you have requested. However, it is exempt from disclosure under section 22 of the FoIA. This is because the information is intended for publication at a future date.

We recognise the public interest in the promotion of transparency, accountability and the enhancement of understanding of our work. This is why we already publish certain information relating to automatic enrolment which we consider to be in the wider public interest. In light of the number of similar requests for information we’ve received, using different timescales, terminology and interpretations of the legislation, we consider that it is not in the public interest to disclose this information in a piecemeal fashion as that could lead to inadvertent errors and inconsistencies. TPR is already accountable to Parliament for any penalties it imposes and we currently publish information on penalties as part of our annual report and accounts. We will be publishing information on automatic enrolment penalties with more detail in the interest of increasing transparency and accountability as part of our next annual report and accounts.

We have considered whether there is nevertheless a public interest in publishing this information now but concluded that there would be little or no public interest served in publishing information relating to automatic enrolment penalties with numerous caveats. As indicated above publishing this information piecemeal leaves it open to different interpretations and could lead to the dissemination of inaccurate or misleading information which, again, is not in the public interest.

Q4 – The median number of days that Escalating Penalty Notices have applied (which we have taken to mean the days between the start of accrual and the date by which the daily accrual stopped) is 10 days.

Q5 – For completeness, you have clarified that you have requested the information as a proportion of all upheld Fixed Penalty Notices. 95% of Fixed Penalty Notices upheld were issued for the failure to comply with the automatic enrolment duties, which includes failure to complete the declaration of compliance. Please note that one penalty notice may relate to more than one such breach, so we cannot say definitively how many are solely in relation to failure to complete the declaration of compliance.

Q6 – The information you have requested would be ‘restricted information’. Restricted information is defined at section 82(4) of the Pensions Act 2004 (PA04) as 'information obtained by the Regulator in the exercise of its functions which relates to the business or other affairs of any person’.

Under section 82(5) of the PA04 it is a criminal offence to disclose such information except as permitted under that Act.

Whilst the FoIA is based on the presumption of releasing information, section 44(1)(a) of the FoIA provides an absolute exemption to the requirement to disclose any information if its disclosure is prohibited by or under any enactment. This exemption is absolute and does not require a public interest assessment be undertaken.

Q7 – Our declaration of compliance portal does now include a list of the pension schemes employers stated they used for automatic enrolment in their declaration of compliance. It is based on data provided in declarations from small employers over a period of time earlier in 2016. This list will be randomised on a regular basis and is also not intended as any endorsement of the particular schemes used and isn't to help employers select a scheme for automatic enrolment (as they will have already chosen their scheme at this point).

We are not able to supply a list of the pension providers on this list as we consider this information is also exempt under section 43(2) FoIA. We have applied this exemption for the following reasons: we do not publish this list as it will be reviewed and amended on a regular basis to ensure that the schemes still reflect what employers are telling us they have used in their declarations. Additionally, if the information were disclosed it could influence or distort the market in ways not intended or justified. We consider that publishing the information requested at Q7 would be likely to potentially negatively impact the commercial interests of pension providers, and / or competition in the pension provider market which would not be in the public interest, and was not the intention behind publication of the pension schemes on the declaration of compliance portal. Accordingly the exemption in section 43 (2) FoIA is applied to withhold this information.

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