On this page...
- Procedures and flowcharts
- Initial investigation by TPR's case team
- Third party applications
- Standard procedure
- Special procedure
- The determination
- Appealing against a determination
- The Upper Tribunal
Procedures and flowcharts
TPR has published details of the standard and special procedures that are followed by its case teams and the Determinations Panel, listed below.
Earlier versions of the Case Team and Determinations Panel’s procedures, together with any associated flowcharts which have since been superseded, can be found in our document archive.
A summary of key aspects of the standard and special procedures can be found in the flowcharts, also listed below.
You can find further information, including details of current members, in our guidance on the Determinations Panel.
Initial investigation by TPR's case team
Cases in which TPR's decision must be made by the Determinations Panel are initially investigated by TPR’s case teams. If appropriate, these cases are then referred by the case teams to the Panel for a determination.
The case teams sit in an operational directorate of TPR, operate separately from the Panel and ordinarily comprise a case manager (who will usually be the primary point of contact for any parties involved in the investigation), a lawyer, a business analyst and an actuary.
Third party applications
In some circumstances, a third party may make an application to TPR for a particular power to be used, for example to waive their disqualification as a trustee. The Determinations Panel have produced some guidance for parties making such an application:
If, having investigated a case, the case team believes that the exercise of one or more of TPR's functions may be appropriate (or, in certain cases, if it receives an application requesting it to exercise its function), it will follow a procedure known as 'standard procedure' and issue a warning notice.
A warning notice is a written statement setting out either why the case team believes that the exercise of TPR's function(s) may be appropriate, or that the case team has received an application from a third party requesting it to exercise certain functions. The warning notice will attach documents that the case team has obtained that might reasonably be considered to support or undermine the case for the exercise of the function(s). The warning notice is sent to all those parties that the case team believe to be directly affected and these parties are then given a reasonable opportunity to respond.
The case is then subject to a further review by the case team and referred to the Determinations Panel if appropriate. The Determinations Panel will then progress the case to a determination.
In some cases, the case team may believe that the Determinations Panel needs to exercise a function straightaway 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; TPR may want to appoint a trustee with exclusive powers immediately to safeguard members' benefits or scheme assets.
In such cases the ‘special procedure’ will be applied and the case team will refer the matter to the Determinations Panel for a determination as soon as possible. This may mean that the usual steps followed in a standard procedure case may not happen, for example, a warning notice may not be given to the directly affected parties.
Where a case has been decided using the special procedure it is necessary for the Determinations Panel to conduct a ‘compulsory review’ as soon as reasonably practicable after the determination is made. Prior to the compulsory review, each party will be sent the papers that the Determinations Panel had before it when it made its determination and be given the opportunity to provide representations to be considered by the Determinations Panel. The Determinations Panel will consider any comments made, along with any relevant new information, when it makes its final decision.
At the compulsory review, the Determinations Panel may decide to confirm the original determination, amend it, or substitute a different determination.
The Determinations Panel usually consists of at least two members who sit to consider whether or not to make a determination(s). A quorum is deemed to be two members. After a determination has been made, the parties will be advised of the determination in writing. This notification will explain:
- what functions TPR has exercised or will exercise
- what facts were used to reach the decision
- the reasons for the decision
Not all determinations are made by the Determinations Panel. The Staff Determinations procedure describes the actions of TPR for those functions where the decision whether (including how) to make the determination is made by a member of TPR staff.
TPR may also choose to publish the determination (but only after a compulsory review in special procedure cases).
Appealing against a determination
Any (final) determination made by the Determinations Panel and most determinations under the Staff Determination procedure can be appealed. A party, other than the case team, 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 TPR is not normally allowed to exercise the function decided at the determination (except in relation to the functions detailed in section 96(6) of the Act all of which can have immediate effect).
The Upper Tribunal
The Upper Tribunal is the independent body set up to hear references on determinations, and it issues its own guidance on the form and content of a reference. Find the Upper Tribunal's rules under rules and legislation on the Justice website.
The Upper 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.
It 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
TPR must act in accordance with the direction of the Tribunal.