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Using our powers

There are some powers that our staff decide if we can use. This includes enforcing employers’ automatic enrolment duties.

Other powers can only be exercised by our Determinations Panel (DP). These are known as ‘reserved powers’. This includes prohibiting pension scheme trustees and using our anti-avoidance powers.

In our DP cases, our case teams carry out initial investigations. They will submit the case to the DP if this is appropriate. The DP does not start or investigate its own cases.

Our case teams sit in our operational directorate. They operate separately from the DP.

The DP’s decisions are based on the evidence presented by our case team and the directly affected parties. All these parties have the chance to express their views.

When our staff or the DP decide whether to use our powers, this is known as a ‘determination’.

Third-party applications

A third party may ask us to use certain powers. For example, someone may want us to waive their disqualification from being a trustee.

The DP has produced guidance on making third-party applications (PDF, 89kb, 7 pages).

Procedures in Determinations Panel cases

The case team will progress a case using the standard procedure or the special procedure.

Standard procedure

The standard procedure involves the case team issuing a warning notice. This sets out either:

  • why the case team believes it may be appropriate to use our powers
  • that the case team has received an application from a third party asking us to use certain powers

The case team attach documents to the warning notice that they consider to support or undermine the case for using our powers. The warning notice is sent to all parties that the case team believe are directly affected. These parties are given a reasonable opportunity to respond.

The case is subject to a further review by the case team and referred to the DP if appropriate. The DP then progresses the case to a determination.

The case team may withdraw a case from the DP before it reaches a determination. It might do this, for example, if a resolution is reached.

Special procedure

In some cases, the case team may believe that the DP needs to use a power at once. This is where there is, or is likely to be, an immediate risk to the interests of the members or the assets of a scheme. For example, where there is evidence of failings by trustees we may want to appoint an independent trustee with exclusive powers without delay.

If the case team use the special procedure they will refer the matter to the DP for an initial determination as soon as they can. This may mean that the usual steps followed in a standard procedure case do not happen. For example, the case team may not give a warning notice to the directly affected parties.

If the special procedure is used, the DP needs to carry out a compulsory review as soon as they can after they make the initial determination. Before the compulsory review, each party is sent the papers that the DP had when it made its initial determination. Each party is given the opportunity to provide representations for the DP to consider. The DP considers any comments made, along with any relevant new information, when it makes its final decision.

At the compulsory review, the DP may decide to confirm, vary, revoke or substitute the original determination.

Further details about the standard and special procedures in DP cases

Making the determination

In reaching its decision, the DP must consider the interests of the pension scheme members and the directly affected parties.

After the DP makes a determination the parties are told of the determination in writing. This will explain:

  • what functions we have used or will use
  • what facts were used to reach the decision
  • the reasons for the decision

Publishing a determination

We may decide to publish a determination notice. For special procedure cases, we will only do this after the compulsory review.

Challenging a determination

A directly affected party can challenge any final determination that the DP makes. They have 28 days from the date they were told of the decision to challenge it. A challenge, called a reference, is made to the Upper Tribunal.

During this 28 day period we cannot use the power referred to in the determination, except for certain powers that we can use straight away.

The Upper Tribunal may consider any available evidence that relates to the reference. This includes evidence that was not available at the time of the original determination.

The Upper Tribunal will decide whether to confirm, revoke, vary or substitute the determination.

Procedures in staff cases

The procedure we use when a member of our staff decides whether we can use a power will vary depending on the power in question.

For example, we use the staff determinations procedure (PDF, 123kb, 12 pages) for the staff powers set out in section 93 of the Pensions Act 2004.

For information about what happens if employers don’t comply with their automatic enrolment duties, and appealing against enforcement action, go to what happens if I don’t comply. For more details on our approach to investigations and enforcement under the automatic enrolment regime, see our compliance and enforcement policy (PDF, 314kb, 62 pages).

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