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Who must report

Code in force: 28 March 2024

  1. Certain people (reporters) are required to report breaches of the law to us when they have a reasonable cause to believe that1
    • a legal duty which is relevant to the administration of a scheme, has not been, or is not being, complied with, and
    • the failure to comply is likely to be of material significance to us in exercising any of our functions
  2. We interpret ‘administration’ widely over duties to report breaches of law, as part of our role regulating these schemes. Our interpretation is broader than day-to-day administrative tasks, such as record-keeping, dealing with membership movements, calculating benefits, and preparing accounts. It also includes considering investment policy, investment management, the custody of invested assets in all schemes, and scheme funding in defined benefit schemes. Broadly, our interpretation covers anything that could affect members’ benefits, or members and others ability to access the information they are entitled to.

Who has the duty to report

  1. Those with a duty to report are listed below. This list is not exhaustive, and if it is unclear whether the duty to report applies, the potential reporter may wish to seek legal advice:
    1. Trustees
      Each trustee. If the trustee is a corporate body, the requirement to report falls on the trustee company.
    2. Public service scheme pension boards
      Each member of the pension board of a public service pension scheme.
    3. Scheme managers
      This includes managers of public service pension schemes and personal pension schemes where a direct payment arrangement exists.
    4. Service providers
      Those who provide administrative services to occupational and personal pension schemes, including:
      • insurance companies and third-party administrators, who carry out administrative tasks relating to a scheme
      • participating employers, who provide staff to carry out administration tasks in- house (this includes performing payroll and similar functions, as well as carrying out or helping with direct administration of the pension scheme)
      • financial advisers and consultants, who provide services to trustees such as record-keeping or acting as intermediaries receiving and forwarding scheme documents.
    5. Employers
      All employers. In a multi-employer scheme, this includes any employer who becomes aware of a breach, regardless of whether the breach relates to or affects, members who are its employees or those of other employers.
    6. Professional advisers
      This includes advisors appointed by the governing body, such as scheme actuaries, scheme auditors, reporting accountants, legal advisers2, investment managers, and custodians of scheme assets. Where an individual is appointed to provide the relevant service, the duty to report applies to that individual. Where a firm is appointed to provide services, the duty to report applies to the firm.
    7. A scheme strategist or scheme funder of master trust scheme
      This is defined in Part 1 of the Pension Schemes Act 2017 (see section 39 of that Act).
  2. Governing bodies should be satisfied that those responsible for reporting breaches are aware of the legal requirements and this code. Training should be provided for the governing body and any in-house administrators.
  3. A person’s responsibility to report breaches is not limited to those that relate to their specific role in a scheme. Regardless of the activities being undertaken, material breaches should be reported as they are identified.

Whistleblowing protection and confidentiality

  1. The Pensions Act 20043 makes it clear that the duty to report overrides certain other duties a reporter may have (such as confidentiality), and that any such duty is not breached by making a report. We understand the potential impact of a report on the relationship between a reporter and their client, or, in the case of an employee, their employer.
  2. The duty to report does not override legal privilege4. Communications (oral and written) between a professional legal adviser and their client, or a person representing that client, while obtaining legal advice, do not have to be disclosed.
  3. The Employment Rights Act 19965 (ERA) provides protection for employees making a whistleblowing report to us. If individuals that are employed by firms with a duty to report, disagree with a decision not to report, they may have protection under the ERA if they make an individual report in good faith.
  4. We will take all reasonable steps to protect a reporter’s identity and maintain confidentiality, when a report is made in confidence. We will not disclose any information except where lawfully allowed to do so.
  5. In all cases, reporters should act conscientiously and honestly, and to take account of expert or professional advice where appropriate.

Legal references

1Section 70 Pensions Act 2004 [Article 65 Pensions Order (Northern Ireland) 2005]

2Subject to the exceptions set out in Section 311 Pensions Act 2004 [Article 283 Pensions Order (Northern Ireland) 2005]

3The Pensions (Northern Ireland) Order 2005

4Section 311 Pensions Act 2004 [Article 283 Pensions Order (Northern Ireland) 2005

5The Employment Rights (Northern Ireland) Order 1996

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