You have requested the following information:
A) the 'internal criteria' referred to in The Pensions Regulator's FOI response dated 26 November 2018
B) the consideration of whether to revoke our client's penalty notice, including the application of the internal criteria
Information we are able to supply
I can confirm that we hold the information you have requested in question A.
The internal criteria referred to in our FOI response dated 26 November 2018 are as follows:
Criteria 1 - TPR received the chair’s statement before 31 March 2017 and, given the considerable delay, it was fair and reasonable to revoke the penalty notice on the grounds that it was considered procedurally unfair to pursue the fine.
Criteria 2 - the chair’s statement was sent to TPR by the trustee more than six weeks before the deadline for the trustee to have completed the chair’s statement. During this time, TPR could have provided feedback and had it done so at least two weeks before the deadline, the trustee could have produced a compliant chair’s statement. Since that opportunity was lost because of TPR’s delay, it was considered procedurally unfair to pursue the fine.
Criteria 3 - TPR sent a penalty notice in relation to a chair’s statement less than two weeks before the deadline for the trustee to complete a subsequent chair’s statement. If TPR had sent the penalty notice more than two weeks before a subsequent chair’s statement was due to be completed, the trustee would have had the opportunity to take into account the points raised in the penalty notice when preparing the subsequent chair’s statement. However, due to TPR’s delay, it was considered procedurally unfair to pursue the fine.
Criteria 4 - There was a significant delay of over six months between TPR receiving a chair’s Statement and imposing a penalty, and the trustee has since produced a subsequent chair’s statement. The delay in imposing the penalty means that the subsequent chair’s statement was prepared without the benefit of TPR’s assessment on areas of non-compliance in respect of the previous chair’s statement. Had TPR sent the penalty notice in respect of the first chair’s statement at least two weeks before the subsequent chair’s statement was due, the trustee would have been able to reflect on its assessment when producing the subsequent chair’s statement. Due to TPR’s delay, it was considered procedurally unfair to pursue the fine.
Criteria 5 - The trustee provided a chair’s statement to TPR, and TPR formed the opinion it was not compliant. TPR did not issue a penalty notice in good time, and at least two weeks before the subsequent chair’s statement was due to be completed. TPR considered that the opportunity to have produced a subsequent compliant chair’s statement was lost and revoked the penalty notice on grounds that it would be procedurally unfair to pursue it.
Information we are not able to supply
I am unable to confirm or deny if we hold the information requested in B, above. This is because the information is exempt under the following section of the Freedom of Information Act (FoIA).
Section 44(1)(a) – restricted information under section 82 of the Pensions Act 2004
As we have been given strong powers to demand documents and other information from trustees, employers and others, those powers are also balanced by restrictions on how we disclose the information provided to us. The type of information you have requested in request B 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. In this case, section 82 of the PA04 prohibits disclosure and we are unable to disclose the requested information. This exemption is absolute and does not require a public interest assessment be undertaken.