Carrying out determinations

A determination may take place when:

  • the regulator has investigated a case and has grounds for believing that a breach may have occurred which is within its power to sanction or prosecute;
  • a problem has arisen in a scheme that the regulator considers can be put right with the use of one of its powers; or
  • an application has been made by trustees, managers, members or employer of a scheme for the regulator to use one of its powers.

The Pensions Regulator's staff have the discretion to use some of the powers - for example, improvement notices - but the majority can only be used with the consent of the regulator's Determinations Panel. A determination is usually carried out by the Determinations Panel using a standard procedure. If a case requires immediate action, a special procedure will be used.

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The Determinations Panel procedure and standing orders

The Determinations Panel was established by the Pensions Act 2004 which requires that certain decisions by the regulator must be referred to the Determinations Panel.

The Determinations Panel reviewed its procedure in June 2008 in the light of experience so far, with no substantial changes required.

This revised procedure (PDF) explains the process the Determinations Panel will follow to make these decisions.

The Panel has established its standing orders (PDF), which are available to view. 

The procedures are designed to ensure that the Panel makes determinations in a totally fair manner by considering all the evidence, showing no bias or prejudice to or against any party, and giving a fair hearing to all parties to state their case and comment on the case put forward by others.

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Meetings of the Determinations Panel

A sub-committee of the Determinations Panel, usually consisting of three members, sits to consider cases.  A quorum is deemed to be two members. The sub-committee determines on cases brought before it, in accordance with the regulatory functions it is able to exercise on behalf of the regulator. These reserved regulatory functions are detailed in Section 10 and Schedule 2 to the Pensions Act 2004.

On occasions a sub-committee will be urgently convened to hear a 'special' procedure case under section 97 of that Act. This is a procedure that can be exercised on behalf of the regulator with immediate effect if it is believed that there is an immediate risk to members' benefits or scheme assets.

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The Determinations Panel

In most cases, a determination is carried out by the Determinations Panel. Members of the Panel are people with legal, business and/or pensions knowledge. The Determinations Panel, though a committee of the regulator, is separate from the regulator, in that it has a separately appointed membership and legal support. This enables it to make impartial decisions, based on the evidence before it. All parties involved are given the opportunity to express their views. Panel members are not involved in investigating cases. Administrative support is supplied from within the regulator by staff who are not involved in the preparation of the cases that are put forward to the Panel.

The structure of the Panel is set out in Section 9 of the Pensions Act 2004. Section 9(1) requires that the Determinations Panel is made up of:

  • a chairman (appointed by the regulator)
  • at least 6 other persons (nominated by the chairman of the Panel and then appointed by the regulator).

Further provision about the Determinations Panel is made in Schedule 1 to the Act, including provision as to the terms of appointment, tenure and remuneration of members and its procedure.

The current members of the Determinations Panel are as follows:

John Scampion CBE (chair)

Tribunal Judge of the Criminal Injuries Compensation Appeals Panel and former commissioner of the Healthcare Commission and chair of the Audit Committee. John was commissioner for immigration services from 2000 to 2005 and social fund commissioner for Great Britain and Northern Ireland from 1995 to 2000. He was the clerk and chief executive of Solihull Metropolitan Borough Council from 1977 to 1995. John qualified as a solicitor in 1966.

Peter Hinchliffe

Peter is a barrister and currently holds a number of legal and regulatory positions. He is a judge in the Consumer Credit, Charity and Social Security Tribunals, Counsel at the Charities Aid Foundation (a charity providing banking and other financial services to the charity sector), a member of the Regulatory Decisions Committee at the FSA, a member of HM Treasury Independent Review Panel for the Equitable Life Compensation Scheme and Chair of the Adjudication Panel at the CLC. Peter was Lead Ombudsman for Insurance at the Financial Ombudsman Service until 2010 and has spoken and written extensively on consumer issues. Prior to that he held senior management positions at Cancer Research UK and GEC plc. He is an experienced non-executive director and charity trustee.

Andrew Long

Andrew is currently Acting Chairman of the Regulatory Decisions Committee at the Financial Services Authority and a judge of the Tax Chamber of the Finance and Tax Tribunal. He is also a Deputy District Judge of the High Court and County Court and a panel chair for the Access Disputes Committee for the regulated rail industry. Andrew spent much of his career at Pinsent Masons Solicitors where he was a partner for 16 years.

Suzanne McCarthy

Currently the UK's Immigration Services Commissioner. Prior to this Suzanne was chief executive of the Human Fertilisation Authority (1996 to 2000) and thereafter chief executive of the Financial Services Compensation Scheme (2000 to 2004). Suzanne is a member of the General Medical Council, the Human Tissue Authority, the Royal Institution of Chartered Surveyors UK Regulatory Board, the Board of Trustees of the University of London and the Royal Institute of British Architects. In addition, she is a member of the Association of Chartered Certified Accountants Disciplinary and Regulatory Committees and the Honorary Chairman of the European Forum of Deposit Insurers. Suzanne has held a variety of positions within central Whitehall. Prior to joining the civil service, Suzanne worked as a solicitor in private practice and taught law at Manchester University.

Elizabeth Neville

Elizabeth has spent much of her career within the police service, including seven years as the Chief Constable for the Wiltshire Constabulary, as well as time with the Metropolitan, Thames Valley, Sussex and Northamptonshire police forces. More recently Elizabeth has, amongst other roles, been an independent complaints assessor for the Department of Transport and a member of the Police Appeals Tribunal. Elizabeth is currently a member of the Civil Nuclear Police Authority, a non-executive director at the Serious Fraud Office and an independent adjudicator at Companies House.

Alasdair Smith

Alasdair is a former Vice-Chancellor of the University of Sussex where he is currently Research Professor of Economics. His academic career was at University College Oxford and the London School of Economics before he joined the University of Sussex in 1981. He was a member of the group of experts for the Independent Public Service Pensions Commission chaired by Lord Hutton. Alasdair is currently chair of the Armed Forces Pay Review Body, a member of the Review Body on Senior Salaries, and a Deputy Chair of the Competition Commission.

Anthony Stern

Anthony has a background in finance, both in banking and most recently as the Head of Treasury at InterContinental Hotels group plc (IHG) with responsibility for treasury, financing and investment activities across the 100+ countries in which the group has hotels. For two years (2001/2) he was President of the Association of Corporate Treasurers. He is a trustee director of the IHG UK pension trust and was formerly chairman of another FTSE 100 pension fund. Anthony has also worked with the Economist Intelligence Unit and is currently a panel member and on the audit committee of the UK Competition Commission.

Daniel Taylor

Formerly Company Solicitor at News International Newspapers Ltd where he specialised in media law, Daniel is now a partner in the law firm of Taylor Hampton Solicitors Limited, where he specialises in media law, commercial litigation and pension related disputes. He is a former Chairman of Trustees of three pension funds at News International, and has chaired both defined benefit and defined contribution schemes.

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Determinations Panel members' expenses

Here you will find documents containing the expenses for The Pensions Regulator's Determinations Panel chair and members processed during each quarter. This includes all expenses incurred for travel, accommodation and meals etc, as well as any hospitality given to others. A separate sheet shows any hospitality received by these individuals in their capacity as the regulator's Determination Panel members during the specified quarter.

Some explanatory notes:

Expenses are incurred by the regulator's Determinations Panel members in two ways. Either individuals spend their own money whilst on the regulator's business and then claim it back or, particularly for travel and accommodation that needs to be booked in advance, the regulator makes bookings directly and is invoiced for the cost. For this reason, these expenses will be published for the quarter in which they were paid, and therefore may not necessarily appear alongside other expenses (claimed back in arrears) for the same trip.

 Quarter 1 expenses (01 April 2011 to 30 June 2011) (PDF)

 Quarter 2 expenses (01 July to 30 September 2011) (PDF)

 Quarter 3 expenses (01 October to 31 December 2011) (PDF)

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Standard procedure : the decision to make a determination

Determinations are made on the basis of the evidence contained within a warning notice, the relevant law and any representations submitted on the warning notice made by the parties involved.

A warning notice is a written statement containing:

  • the circumstances of the case and the details of the alleged breach or grounds for the application
  • evidence to support the allegation or application - this may include information gathered during the course of the regulator's investigation that demonstrates the need for a power to be used, or papers submitted that support a request for the regulator to act
  • details of the specific powers that the regulator asks the Determinations Panel to consider using.

The determination will also take into account the interests of the members of the scheme and others who are directly affected by the decision.

Before The Pensions Regulator's regulatory team seeks a determination by the Determinations Panel, copies of the warning notice will be issued to all parties considered to be directly affected by the outcome. This means that all parties see exactly the same information and evidence, including the Determinations Panel members making the decision.

The directly affected parties will usually have at least 14 days to read the warning notice and comment on it. Any comments made should be passed between all other parties involved. If comments are submitted, they will be included with the warning notice and considered at the meeting of the determinations panel.

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Special procedure : for immediate action

Sometimes the regulator may believe that it needs to exercise certain powers because there is an immediate risk to the interests of the members or the assets of a scheme. For example, where there is evidence that the trustees have been dishonest, the regulator may want to appoint a trustee with exclusive powers immediately to safeguard members' benefits or scheme assets.

In these circumstances the standard procedure of issuing a warning notice to the directly affected parties before the determination will not apply. This is to ensure that:

  • action can be taken to protect members' interests without delay
  • the possibility of 'tipping off' an offender that the regulator is considering action is avoided.

Both the Determinations Panel on behalf of the regulator, and the regulator, can exercise a power without issuing a warning notice to the directly affected parties. However, the regulator can only do so in relation to sections 7(1) (where a trustee is removed by reason of disqualification), 7(3)(b) and 23(1) of the Pensions Act 1995.

The law requires the review of any Special Procedure decision as soon as reasonably practicable after the determination is made. All compulsory reviews of the Special Procedure decision must be carried out by the Determinations Panel.

Directly affected parties will be given an opportunity to comment on the determination and papers that either the Determinations Panel or the regulator had before it when it made the decision, prior to the compulsory review. The Determinations Panel will consider these comments, along with any relevant new information on the application, when it makes its final decision.

At the review, the Panel may decide to confirm the original determination, amend it, or substitute a different determination.

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The determination decision

After a determination has been made, the directly affected parties will be advised of the decision in writing. This notification will explain:

  • what powers the regulator has exercised or will exercise
  • what facts were used to reach the decision
  • the reasons for the decision.

This decision may be appealed. The regulator may also choose to publish the decision.

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Appealing against a decision

Any determination made by the Determinations Panel can be appealed. A directly affected party has 28 days from the date of notification of the decision to make an appeal. An appeal is made to The Upper Tribunal and is called a 'reference'.

During the 28 days the regulator is not normally allowed to use the power decided at the determination except where it is a power that can have immediate effect, for instance one that is needed because there is an immediate risk to the interests of the members or the assets of the scheme. The powers detailed in section 96(6) can all have immediate effect, even when heard under the standard procedure.

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The Upper Tribunal

The Upper Tribunal is the independent body set up to hear references on determinations. The Tribunal will issue its own guidance on the form and content of a reference. The Upper Tribunal's rules can be found online.

The Tribunal may consider any evidence available to it in relation to the subject of the reference.  This includes evidence that was not available at the time of the original determination.

The Tribunal will decide whether to:

  • confirm the determination and any order, notice or direction
  • vary or revoke the determination and any order, notice or direction
  • substitute a different determination, order, notice or direction.

The Pensions Regulator must act in accordance with the direction of the Tribunal.

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Determination notices

Publication of determinations

The regulator's policy is to publish all determinations reserved to The Pensions Regulator's Determination Panel, and in full, unless the regulator considers there is good reason not to.

Exceptions to publishing a determination, or publishing it in full, will be considered where publication would give rise to one or more of the following:

  • an adverse impact on market behaviours – which can include commercial and/or price sensitivity issues
  • prejudice investigations by other bodies
  • disclosure of information protected under the Official Secrets Act or unrelated restricted information
  • risk to individual safety or mental health (in relation to reputational and civil liability)
  • disclosure of sensitive personal data.

When will determinations be published?

Determinations will be published as soon as practicable following the determination by the Determination Panel except in the following cases:

  • where the determination involves prohibition of trustees – to take into account legislative requirements
  • where a determination has been made under the special procedure - decision on publication will be delayed until after a compulsory review has taken place.
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Published determinations April 2011-March 2012

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Published determinations April 2010-March 2011

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Published determinations April 2009-March 2010

 
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Published determinations April 2008-March 2009

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Published determinations April 2007-March 2008

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Published determinations April 2006-March 2007

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Published determinations April 2005-March 2006

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© The Pensions Regulator 2012