Determination Notice under section 96(2)(d) of the Pensions Act 2004.
In respect of Worthington Employee Pension Top-Up Scheme.
The Pensions Regulator enquiry reference: C209094888.
1. Regulatory Action
The Pensions Regulator (“TPR”) has considered whether to take the regulatory action to appoint a trustee under section 7(3)(b) of the Pensions Act 1995 (the “1995 Act”) (the “Regulatory Action”) in respect of the Scheme, and if so, whether the appointment order should:
- provide for any fees and expenses of the appointed trustee to be paid out of the resources of the Scheme pursuant to section 8(1)(b) of the 1995 Act;
- provide that any trustee fees and expenses paid from the Scheme shall be treated for all purposes as a debt due from the Employer to the trustees of the Scheme pursuant to section 8(2) of the 1995 Act;
- provide for restricting the powers or duties of a trustee so appointed or for powers or duties to be exercisable by a trustee so appointed to the exclusion of other trustees under section 8(4) of the 1995 Act, and;
- provide for the removal or replacement of such a trustee under section 7(5)(c) of the 1995 Act.
2. Directly Affected Parties
The following are the “Directly Affected Parties”:
- Dalriada Trustees Limited - (CRN - NI038344)
- John Marcus Worthington
They have been identified as persons directly affected by a determination to take the Regulatory Action and are being notified of this determination under TPR’s standard procedure in accordance with sections 95 and 96(2)(d) of the 2004 Act.
In accordance with sections 5 and 100 of the 2004 Act, when coming to its decision TPR also considered its statutory objectives and had regard to the interests of the generality of the Scheme’s members and the Directly Affected Parties.
3. Definitions
Employer: Marcus Worthington & Co Limited (dissolved on 5 January 2022)
Register: The trustee register maintained by TPR as required by s23(4) of the 1995 Act
Trustee: John Marcus Worthington
New Trustee: Dalriada Trustees Limited (CRN NI 38344)
4. Procedure Followed: Standard Procedure under Section 96 of the 2004 Act
4.1 The Directly Affected Parties identified in the Warning Notice dated 14 August 2024, were given notice that TPR proposed to make a determination regarding the appointment of a trustee under section 7(3)(b) of the 1995 Act in respect of the Scheme.
4.2 The Directly Affected Parties identified had an opportunity to make written representations to TPR in response to the Warning Notice dated 14 August 2024.
4.3 No material representations were made by the Directly Affected Parties to TPR in response to the Warning Notice but a request was made by the Proposed Trustee, Dalriada Trustees Limited.
4.4 A Response was provided dated 10 February 2025 and no further representations were received to that Response.
4.5 On the basis of the facts and matters described below, TPR has made its determination regarding the appointment of a trustee to the Scheme.
5. Background
The Warning Notice dated 14 August 2024 provides a summary of the Scheme’s details, relevant legislation and procedure, and the circumstances, matters and facts relied upon by TPR in deciding whether or not to take the Regulatory Action.
6. Determination
In making this determination, TPR has relied on the information set out in the Warning Notice dated 14 August 2024 and any representations received from the Directly Affected Parties and the Response dated 10 February 2025.
Having considered the factors it must consider in deciding whether it would be reasonable to take the Regulatory Action, TPR has determined to appoint the New Trustee to the Scheme under s.7(3)(b) of the 1995 Act in order to secure that the number of trustees is trustees is sufficient for the proper administration of the Scheme.
This determination is made on the basis that TPR considers that:
- the requirements in the relevant statutory provisions have been met and are satisfied that the statutory test for the exercise of the power to appoint a Trustee pursuant to s7(3)(b) of the PA95 is also met;
- that it is appropriate to appoint a new trustee to the Scheme as there are no trustees in place willing to act as a trustee as demonstrated by the complete absence of meeting their statutory obligations and general administration to the Scheme since 2019;
- the Employer is dissolved and unable to appoint a new Trustee to the Scheme; and
- the New Trustee is an appropriate person to assume the role of trustee to the Scheme.
Accordingly, in making this determination, TPR has also determined that the appointment of the New Trustee will be made on the following terms pursuant to its powers to do so:
| Power | Relevant section of 1995 Act | Terms | Reasons |
|---|---|---|---|
| To require the trustee appointed to be paid fees and expenses from the Scheme. | Section 8(1)(b) | That the trustee be paid fees and expenses by the Scheme. | To order that any fees and expenses of the New Trustee to be paid out of the resources of the Scheme because the Employer is unable to be liable for the fees of an independent trustee to be appointed to the Scheme. |
| To provide that any fees and expenses paid from the Scheme shall be recoverable from the Employer | Section 8(2) | That any trustee fees and expenses paid from the Scheme shall be treated for all purposes as a debt due from the Employer to the trustees of the Scheme. |
To allow the trustees to recover fees and expenses from the Employer if they are able to restore the Employer and so preserve the assets of the Scheme. |
| To allow for the powers or duties to be exercisable by the appointed trustee to the exclusion of other trustees. |
Section 8(4)(b) |
That the powers or duties be exercisable by the appointed trustee to the exclusion of other trustees. |
To ensure that the appointed trustee can properly administer the Scheme. |
| To provide for the removal or replacement of the appointed trustee. |
Section 7(5)(c) |
That the appointed trustee may be removed and replaced upon twenty-eight days’ notice. |
It is in accordance with TPR’s normal practice. |
7. Important Notice
This determination notice is issued pursuant to TPR’s standard procedure in accordance with sections 95 and 96(2)(d) of the 2004 Act and with reference to section 7(3)(b) of the 1995 Act.
You have the right to refer the determination which is the subject-matter of this determination notice to the Tax and Chancery Chamber of the Upper Tribunal (the “Tribunal”) in accordance with section 96(3) of the 2004 Act. Under paragraph 2(2) of schedule 3 to the Tribunal Procedure (Upper Tribunal) Rules (SI 2008/2698) (the “Tribunal Rules”), you have 28 days from the date this determination notice is given to you to refer the matter to the Tribunal. A reference to the Tribunal is made by way of a written notice signed by you and filed with a copy of this determination notice. The Tribunal’s address in England and Wales is:
Upper Tribunal (Tax and Chancery Chamber)
Fifth Floor
Rolls Building
Fetter Lane
London
EC4A 1NL
Email: uttc@hmcts.gsi.gov.uk
Telephone: 0207 612 9730
In Scotland, the Tribunal’s address is:
Upper Tribunal (Tax and Chancery Chamber)
George House
126 George Street
Edinburgh
EH2 4HH
Email: taxappeals@hmcts.gsi.gov.uk
Telephone: 0131 271 433
The detailed procedure for making a reference to the Tribunal is contained in the Tribunal Rules. A guidance booklet and a form in which to make the reference can be found on the Government’s website: www.gov.uk/tax-upper-tribunal.
You should note that the Tribunal Rules provide that, at the same time as filing a reference notice with the Tribunal, you must send a copy of the reference notice to TPR. Any copy reference notice should be sent to:
The Pensions Regulator
Telecom House
125-135 Preston Road
Brighton
BN1 6AF
Ref: C209094888
TPR reserves the right to vary or revoke this determination under section 101 of the 2004 Act.
8. Information to recipients of this Determination Notice
Data Protection
TPR is a data controller for the purposes of the General Data Protection Regulation (“GDPR”) and the Data Protection Act 2018 (“DPA”). We hold and process personal data in accordance with the principles set out in the GDPR and DPA in carrying out our statutory functions. For information about how we process personal data, please see our privacy notice at https://www.thepensionsregulator.gov.uk/en/website-policies/privacy-notice.
Use of information
Information in this Determinations Notice and accompanying documentation may be “restricted information” within the meaning of section 82 of the PA04. You must not use or disclose it to a third party other than in accordance with that section of PA04. Your attention is drawn in particular to the provisions of sections 82(1)(b) and 82(5) of the PA04. Onward disclosure of “restricted information”, save as permitted under the PA04, is a criminal offence. In any event, you should not use or disclose the information in this Warning Notice and accompanying documentation for any purposes other than those for which it has been supplied without first consulting TPR.
The disclosure in this Determinations Notice and accompanying documentation of any “personal data” within the meaning of the UK GDPR and the DPA 2018, and of any “restricted information” within the meaning of section 82 of the PA04, has been made in connection with the performance of our statutory functions under sections 95 and 96 of the PA04, and section 7(3)(b) of the 1995 Act. You should keep the Warning Notice and accompanying documentation secure at all times.
All information TPR receives in response to this Determinations Notice, including any personal data and restricted information, may be used by TPR (including disclosing it to third parties) in connection with any of its functions. TPR will only disclose such information to a third party (including a public body) for their purposes where it is permitted to do so by law.
It is a criminal offence to knowingly or recklessly supply to TPR information which is false or misleading – see section 80(1)(c) of the PA04
Publication
Please also note that, under section 89 of the 2004 Act, TPR may, if it considers it appropriate to do so, publish a report of the consideration given by it to the exercise of its functions and the results of that consideration. Full details of this policy may be found at https://www.thepensionsregulator.gov.uk/en/document-library/regulatory-and-enforcement-policies/how-we-publish-information-about-cases.
Appendix 1: Appointment Order
In the matter of Worthington Employee Pension Top-Up Scheme (the “Scheme”)
Order of The Pensions Regulator under section 7(3)(b) of the Pensions Act 1995
The Pensions Regulator hereby orders:
(1) Dalriada Trustees Limited (the “Trustee”) is hereby appointed as trustee of the Scheme, with immediate effect.
(2) The order is made because the Pensions Regulator is satisfied that it is reasonable to do so pursuant to the relevant provisions of the Pensions Act 1995 as set out below, in order to secure that the number of trustees is sufficient for the proper administration of the Scheme pursuant to section 7(3)(b).
(3) The powers and duties exercisable by the Proposed Trustee shall until further order be to the exclusion of all other trustees of the Scheme pursuant to section 8(4)(b) of the Pensions Act 1995.
(4) The Proposed Trustee’s fees and expenses in respect of the Scheme shall be paid out of the resources of the Scheme pursuant to section 8(1)(b) of the Pensions Act 1995; and an amount equal to the amount paid out of the resources of the Scheme in accordance with and by virtue of section 8(1)(b) is to be treated for all purposes as a debt due from the Scheme’s employer to the Trustees of the Scheme, pursuant to section 8(2) of the Pensions Act 1995
(5) The appointment of the Proposed Trustee may be terminated, or the Proposed Trustee replaced, at the expiration of 28 days’ notice from the Pensions Regulator to the Proposed Trustee, pursuant to section 7(5)(c) of the Pensions Act 1995 and such power to terminate or replace the appointment shall be exercised by the Pensions Regulator in accordance with its delegation policy.
By virtue of section 96(6)(m) of the Pensions Act 2004, the Order takes immediate effect on and from the date below;
28/02/2025