The Pensions Regulator

Reporting breachesComplying with the duty to report breaches of the law

.

.

Code paragraph 12

(about employers who have the duty to report)

The duty to report which falls on employers extends to insolvency practitioners who continue to employ scheme members. For example, an insolvency practitioner may become aware that the employer had failed to pass over contributions due to the scheme for a significant period prior to the insolvency event. And if the trustees were all senior employees of the employer and had not reported the contribution payment failure to the Pensions Regulator, a report by the insolvency practitioner must be considered.

View code paragraph 12.

Code paragraph 13

(about professional advisers who have the duty to report)

The term 'professional adviser' does not extend to an adviser who is engaged just to provide advice or services to an employer with an occupational pension scheme. However, if such an adviser alerts the employer to a relevant breach, the employer has a duty to consider reporting it.

Where a firm of advisers is engaged to provide advice or services to the employer and, under a separate engagement, to the scheme as well, as long as the staff involved in those two engagements are quite separate, a similar principle applies. That is to say, in their capacity as adviser to the employer, the adviser firm has no duty to consider reporting to the Pensions Regulator. In the same way as above, if the adviser alerts the employer to a relevant breach, the employer has a duty to consider reporting it.

View code paragraph 13.

Code paragraph 24

(on the duty to report)

The duty to report from 6 April 2005 (the date the changes to the reporting requirements took effect) applies to breaches which occurred before that date. A breach that was reported to the Occupational Pensions Regulatory Authority (Opra) is treated as having been reported to the Pensions Regulator. Other breaches which occurred before 6 April 2005 should be reported if they satisfy the criteria in the code.

View code paragraph 24.

Code paragraph 28

(on breaches of trust law)

Examples of actions by trustees which might constitute a breach of trust law are:

• in the exercise of a trustee discretion, not considering all classes of member or treating some members of the same membership class more favourably than others;
• failing to ensure that adequate records are maintained and procedures put in place for the proper running of the scheme;
• delegating duties when not authorised to do so;
• taking a decision without properly addressing a conflict of interest which exists in relation to it; and
• acting contrary to professional advice without having a sound reason for doing so.

View code paragraph 28.

.

.