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Appeal to the tribunal

If you don’t agree with our review decision about your penalty notice (including a decision not to carry out a review) you can appeal to the General Regulatory Chamber of the First-tier Tribunal. This is an independent tribunal separate from The Pensions Regulator.

Find more information about how to appeal to the tribunal, including the notice of appeal form.

Requirements

You can only appeal to the tribunal if you disagree with a review decision we have made about one of these penalty notices:

  • a fixed penalty notice
  • an escalating penalty notice
  • a prohibited recruitment penalty notice.

You must make the appeal to the tribunal within 28 days of the date of our review decision letter.

The appeal must be in writing.

The tribunal has said that they will not accept an appeal if you applied for a review outside the 28 day time limit, and we decided not to carry one out.

What sort of decisions has the tribunal made so far?

Before you appeal to the tribunal you should look at these decisions to understand what the tribunal is likely to consider:
Applications for review received after the 28 day time limit are not considered by the tribunal

If an employer asks for a review more than 28 days after the notice was issued, this is outside the time limit for requesting a review.

The tribunal has decided that it does not have the jurisdiction to hear an appeal about our decision not to carry out a review because the review application was made after the 28 day limit. Appeals on cases like this have been dismissed.

Issues with completing the declaration of compliance on time
  • The tribunal has considered several cases where the employer failed to complete the declaration of compliance by the deadline set down in the compliance notice, but completed it as soon as they got the fixed penalty notice. The tribunal has upheld our decision to issue the fixed penalty notice.
  • The tribunal has also considered several cases where the grounds for review were that technical difficulties prevented an employer from completing the online declaration of compliance on time.
    • In one case the tribunal determined that even if the employer had experienced difficulties in using the online system, they could have completed the declaration of compliance in other ways such as over the telephone, so they dismissed the appeal.
    • In another case, an employer stated that they had experienced technical faults with the online declaration of compliance system. We keep records of all such technical faults and there was no incident recorded on the date the employer had said they tried to complete their declaration of compliance online. The tribunal dismissed the appeal.
Employers need to make every effort to meet their automatic enrolment duties
  • The decisions made by the tribunal to date have confirmed that all employers are expected to act professionally and take timely action in response to letters, emails and notices from The Pensions Regulator.
  • Inattention or lack of effort or diligence, by individual employers or staff, is not a reasonable excuse for failing to comply with the duties on time.
  • The fact than an employee or agent of the employer made a straightforward mistake is also not a reasonable excuse even if the mistake resulted from a medical condition. If an employee’s personal circumstances mean they are no longer able to complete the employer duties, the employer should appoint someone else.
Decisions by the tribunal about the amount of a penalty or the ability to pay
  • The tribunal has noted the £400 Fixed penalty is set in law and the tribunal cannot reduce the amount of the penalty.
  • The tribunal has also said that the fact that the penalty is burdensome is inherent in the fact that it is ‘a penalty’.
  • The penalty reflects both the importance of complying with the employer duty provisions and the seriousness with which a failure to do so should be viewed.
  • If you are intending to apply for a review or appeal because you cannot afford to pay a penalty, please speak to our penalty recovery team on 0345 600 2475 to discuss payment terms.
Our Enforcement Bulletins have more information on current tribunal decisions.