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Information gathering

Important

We are not seeking comments on this section of the policy as it was part of the new enforcement policies consultation in late 2021.

  1. Our investigations typically involve making enquiries to gather relevant information and evidence in a reasonable, appropriate and proportionate way. We may ask people to give us information, documents and explanations voluntarily, or require them to do so using our statutory powers (see below). We only seek information, documents or explanations where reasonably required for the investigation and proportionate to its scope.
  2. In accordance with the Data Protection Act 2018 and the UK General Data Protection Regulation, all information and evidence we gather during an investigation that amounts to personal data is held and disposed of securely.
  3. We disclose information we gather only where we can lawfully do so under relevant legislation, which includes the Pensions Act 2004 governing disclosure of confidential information we receive when carrying out our statutory functions, the Criminal Procedure and Investigations Act 1996 governing disclosure in criminal matters, and the Data Protection Act 2018 and the UK General Data Protection Regulation governing personal data.
  4. We may seek information, documents and explanations from pension scheme trustees, employers or any other person we reasonably believe could have relevant knowledge or be in possession of relevant information or documents. “Other persons” can be anyone, but often include scheme members, third parties giving advice or providing business services to trustees or employers, and providers of occupational pension schemes. We may decide to arrange an interview or an inspection for this purpose.
  5. We give a reasonable period of notice and consider the impact on the time and resource of anyone we’re asking for information, documents, or we’re interviewing, or whose premises we’re inspecting, whether this is on a voluntary basis or using our statutory powers.
  6. Our assessment as to what is a reasonable amount of time or a reasonable period of notice takes into account the anticipated volume, complexity, and accessibility of the information or documents requested, or the preparation time that a person might reasonably require before attending an interview or being inspected.
  7. We also take into account the impact on our investigation timeframes, as well as any statutory time limits for the use of any of the powers we might choose to use. However, we do not limit ourselves as to who we ask for information or interview, nor the number of requests or notices we may issue. We often seek information on a specific issue and then need additional information on a different topic, or seek clarification or further information in relation to the original topic.
  8. The information we ask for depends on the powers we consider may be appropriate and the specific circumstances of the investigation. Examples of the type of information we may ask for include:
    • scheme constitution documents
    • trustee meeting minutes
    • scheme-approved policies and procedures
    • risk registers
    • board resolutions and minutes
    • audit reports
    • annual reports and accounts
    • bank statements
    • investment reports
    • statements of investment principles
    • relevant correspondence
    • relevant advice
  9. In accordance with our duties under the Equality Act 2010, we consider what adjustments we can reasonably make when our request or requirement for information would put a person with a disability at a substantial disadvantage compared to a person who does not. We will also have due regard to our public sector equality duty, which applies to all characteristics protected by that Act. Recipients of our information requests should contact us where their ability to comply with our request or requirement for information is affected by a protected characteristic.
  10. If we decide to carry out covert or directed surveillance activity we first request judicial authorisation, and we comply with the Regulation of Investigatory Powers Act 2000 when gathering information. We also comply with the Investigatory Powers Act 2016 when seeking electronic and communications data under our powers as a designated investigator.

Information-gathering options

Voluntary requests

  1. We may seek information, documentation or a written or verbal explanation, on a voluntary basis.
  2. We allow a reasonable amount of time for a response to be provided to our request.
  3. As part of the investigation, we may obtain voluntary statements from individuals and/or conduct voluntary interviews with them, giving reasonable notice.
  4. If we’re investigating a criminal offence, we follow the relevant legislation in relation to the way suspects are questioned and/or interviewed, and how the material that we gather should be retained, recorded and disclosed. If we decide to interview a suspect we make it clear that this is the basis on which the interview will be held. For interviews relevant to investigations in England, Wales or Northern Ireland, these will always take place under caution and is recorded in line with the relevant code of practice issued under the Police and Criminal Evidence Act 1984. You can read more about our approach to criminal cases in our prosecution policy.
  5. Where voluntary requests for information are not appropriate for our investigation, we use our statutory powers to obtain the information we require.

Statutory powers

  1. Circumstances in which we use our statutory powers may include, for example:
    • asking for information from an adviser or bank where they are subject to legal or contractual restrictions and a statutory notice is required to allow them to release the information we need
    • where it is in the interest of our investigation that the information required is provided within a certain timeframe, or
    • where we are seeking information from a target who we are concerned may not cooperate with a voluntary request
  2. We have a number of investigative powers available to us in both regulatory and criminal cases to obtain information relevant to the exercise of our functions. These are:
    • issuing information notices under s72 of the Pensions Act 2004 which require a person to provide documents and/or information
    • requiring a person to attend an interview under s72A of the Pensions Act 2004 to answer questions and provide explanations
    • carrying out an inspection of premises under s73 of the Pensions Act 2004 (or supported by a warrant, under s78 of the Pensions Act 2004) to obtain information
  3. When using our statutory information-gathering powers, we are as transparent as we reasonably can be about the focus of our investigation at that time and the consequences of non-compliance.
  4. We may also work with the police who can assist us when using some of these powers, for example an inspection (see further below).

Information notices – s72 Pensions Act 2004

  1. When issuing an information notice under s72 requiring information and/or documents to be provided, we allow a reasonable period for compliance. The notice also sets out the method by which the information should be provided, for example, electronically with metadata preserved or in hard copy, and whether original or copy documents are required.
  2. If the recipient of an information notice requires more time to locate or gather the information required, they should contact us as soon as possible, and we consider all reasonable and justifiable requests for an extension of time to comply.
  3. Where a person does not hold or has difficulty locating or accessing the information required under an information notice they must tell us as soon as possible, and before the deadline for compliance. If we are not informed, we may impose sanctions (see non-compliance with our information-gathering powers).
  4. Pre-existing documents obtained through the use of this power may be used in any subsequent proceedings, whether regulatory, financial penalty, civil or criminal proceedings. The restrictions contained in s310 of the Pensions Act 2004 do not apply.

Interview notices – s72A Pensions Act 2004

  1. Our statutory powers under s72A allow us to compel people to attend an interview, answer our questions, and to give us an account of their actions.
  2. When we notify a person that they are required to attend for interview, we usually allow a reasonable period for compliance. However, there may be occasions where we require an immediate interview, or give limited notice.
  3. An interview notice issued under s72A(1) also includes the following information:
    • the relevant power under which the interview is being carried out
    • a statement confirming which of our functions we are using
    • an explanation as to why we are carrying out the interview
    • the details of how we carry out the interview process, including the time and place of the interview
    • a statement setting out the interviewee’s right to be represented at the interview
    • an explanation that any statements made by the interviewee during the interview will not (and are not permitted to be) used against them in criminal proceedings, or where we are seeking to impose a financial penalty, unless the person wishes to rely on them in proceedings
    • a statement setting out the legal effect of the interview notice and the possible sanctions for non-compliance
    • information relating to the process for rearranging the time or place of the interview
  4. Where we are carrying out an interview virtually, the interview notice must also contain:
    • the details for accessing the online platform
    • the details of how the virtual interview will be carried out
  5. We also notify parties who will be attending the interview on our behalf.
  6. If a person is unable to attend an interview at the specified date and time, they must contact us as soon as possible to explain the reasons. We consider all reasonable and justifiable requests to reschedule the interview.
  7. In accordance with s310 of the Pensions Act 2004, statements made by the person during the interview will not be used against them in criminal proceedings, or where we are seeking to impose a financial penalty, unless the person wishes to rely on them in such proceedings – see s310(2) .

Inspections – s73-75 Pensions Act 2004

  1. For the purposes of some of our investigations, the powers under ss73-75 allow us to enter relevant premises and carry out an inspection to, for example, check compliance with certain pensions legislation, or in connection with an investigation into the use of our anti-avoidance powers.
  2. We only carry out inspections when we consider it to be a reasonable and proportionate way of obtaining the information we need to for an investigation. We take into account the type of premises being inspected when making this assessment and when deciding when and how the inspection should take place, including when relevant information is held or stored at a residential address.
  3. We usually give reasonable notice of an inspection before a visit takes place. This gives the person or business the opportunity to prepare the relevant information and records in advance, and for the inspection to take place quickly and effectively, causing minimum disruption.
  4. If a person is unable to attend the premises at the specified date and time, they must contact us as soon as possible to request an alternative time. We usually agree to reasonable and justifiable requests to reschedule the inspection.
  5. However, there may be occasions where we decide to inspect relevant premises without notice, such as where we believe that information or documents may be hidden, destroyed or altered if we give advance warning of our intention to conduct an inspection.

Warrants – s78 Pensions Act 2004

  1. We can apply to a magistrates’ court for a warrant to enter and search premises. This is only issued if the magistrate(s) are satisfied by the information we give (provided on oath) that there is a document located at those premises and it:
    • has been required to be produced under a72 information notice, or at an inspection under s75, and it has not been produced, or
    • could be required to be produced, and if it were, it would not be produced but would be removed, made inaccessible, hidden, tampered with or destroyed, or
    • could be required to be produced, and relates to:
      • whether an offence has been committed
      • whether there will be misappropriation of scheme assets
      • whether a person is liable to pay certain penalties, or
      • whether a person is liable to be prohibited from being a trustee
  2. A warrant to enter and search premises can be executed by an inspector (accompanied by anyone they consider appropriate) for a period of up to one month from the date on which it is issued, using reasonable force if necessary, and authorises an inspector to:
    • take possession of a document which appears to be such a document or take any other steps necessary to preserve it or prevent interference with it
    • take copies of any such document
    • require a person named in the warrant to explain or state where the document may be found
    • in the case of electronic documents, require it to be produced in a form which can be taken away
  3. All documents required to be produced, preserved, copied, taken away or into our possession must be relevant to at least one of our functions.

Information obtained by TPR

  1. A person is not required to produce any document which is a ‘protected item’ as defined in s311 of the Pensions Act 2004. Protected items are broadly materials that are subject to legal professional privilege. If we receive or take possession of any protected items and privilege has not been expressly waived, we return or destroy them promptly. We do not make use of privileged information that comes into our possession in this way (unless privilege has been expressly waived when the document was provided to us).
  2. Information and documents that we obtain that amount to ‘restricted information’ under s82 of the Pensions Act 2004 (ie confidential business information that is not publicly known) are held securely in line with the requirements applicable to such information and documents and are not disclosed to a third party, except where it is permitted by law.
  3. We may retain any document we take into our possession by way of a warrant under s78 for 12 months from the date it was obtained (retention period), unless this period is extended, or if the document is relevant to any criminal proceedings that begin before the end of the 12 month period, until those proceedings end.
  4. Before the retention period expires, the Determinations Panel can extend it (or any extension that may already have been granted) by up to 12 months. For example, we may apply to the Determinations Panel to extend the retention period where the document is considered relevant to an investigation into whether an offence has been committed but criminal proceedings have not yet begun. In any event, we may retain copies of any document in connection with the exercise of our functions.
  5. All other information obtained as part of our investigations is retained in line with our data retention schedule (PDF, 475kb, 9 pages).