PART 1 General

Citation and commencement

1. These Regulations may be cited as the Pension Protection Fund and Occupational and Personal Pension Schemes (Miscellaneous Amendments) Regulations 2016 and come into force on 6th April 2016.

PART 2 Occupational pension schemes amendments

Amendments to the Occupational Pension Schemes (Winding Up) Regulations 1996

2. —(1)The Occupational Pension Schemes (Winding Up) Regulations 1996( 6 ) are amended as follows.

(2) In regulation 6(2)(b) (arrangements for discharge of liabilities under s. 74), before paragraph (i) insert—

“ (ai) in the way mentioned in regulation 8(6)(b)(i)(aa) in a case where the proposed lump sum is an uncrystallised funds pension lump sum for the purposes of Part 1 of Schedule 29 to the Finance Act 2004 ( 7 ) , ” .

(3) In regulation 8(6) (requirements to be satisfied by transferee schemes, annuities etc. )( 8 )—

(a) in sub-paragraph (a), for “Chapter 5 of Part 4” substitute “Chapter 2 of Part 4ZA”; and

(b) in sub-paragraph (b)(i)(aa), after “trivial commutation lump sum” insert “, an uncrystallised funds pension lump sum”.

Amendment to the Occupational Pension Schemes (Assignment, Forfeiture, Bankruptcy etc.) Regulations 1997

3. In regulation 2(1B)(b) of the Occupational Pension Schemes (Assignment, Forfeiture, Bankruptcy etc.) Regulations 1997 (commutation of a pension under an occupational pension scheme)( 9 ), for “from the employment of the employer in relation to the scheme,” substitute “for the purposes of subsection (5)(c)(i) of that section, and”.

PART 3 Pension Protection Fund amendments

Amendments to the Pension Protection Fund (Compensation) Regulations 2005

4. —(1)The Pension Protection Fund (Compensation) Regulations 2005( 10 ) are amended as follows.

(2) In regulation 1(2) (interpretation)( 11 ), for the definition of “PPF trivial commutation lump sum” substitute—

“ “PPF trivial commutation lump sum” has the meaning given in regulation 20(2) (circumstances in which the portion of compensation to be commuted may exceed 25 per cent); ” .

(3) In regulation 2(2) (circumstances where a person shall be entitled to early payment of compensation)( 12 ), for sub-paragraph (b) substitute—

“ (b) that on the date on which the compensation is to become payable early the person has attained—

(i) except in a case to which paragraph (ii) applies, normal minimum pension age as defined in section 279(1) of the 2004 Act ( 13 ) ;

(ii) in a case where the person has a protected pension age of less than 50 by virtue of paragraph 22 of Schedule 36 to the 2004 Act (rights to take benefit before normal minimum pension age) ( 14 ) , the age of 50. ” .

(4) In regulation 19 (commutation of periodic compensation)( 15 )—

(a) in paragraph (1), for “paragraphs (2) and (3)” substitute “paragraph (2)”; and

(b) omit paragraph (3).

(5) In regulation 25(3) (cash balance schemes: modification of Schedule 7 to the Act)( 16 ), for “In this regulation” substitute “In this Part”.

(6) In Part 10, after regulation 25( 17 ) insert—

“ Cash balance schemes: modification of Schedule 7 to the Act

25A. —(1) In its application to a cash balance scheme, paragraph 37 of Schedule 7 to the Act (other definitions) ( 18 ) applies as if, after sub-paragraph (4) there were inserted—

“ (5) In this Schedule references to a lump sum to which a person is entitled, or which a person has been paid, by reason of commuting part of a pension under the scheme include any lump sum to which the person is entitled, or which the person has been paid, by reason of opting to receive a lump sum instead of a pension, or part of a pension, in respect of cash balance benefits under the scheme. ” .

(2) In its application to a cash balance scheme other than a scheme to which regulation 25 applies, paragraph 37(1) of Schedule 7 to the Act applies as if, before the definition of “deferred member” there were inserted—

“ “cash balance benefit” has the meaning given by regulation 2 of the Pensions Act 2011 (Transitional, Consequential and Supplementary Provisions) Regulations 2014 ( 19 ) ; ” . ” .

Amendments to the Pension Protection Fund (Entry Rules) Regulations 2005

5. —(1)The Pension Protection Fund (Entry Rules) Regulations 2005( 20 ) are amended as follows.

(2) In regulation 1 (interpretation)( 21 )—

(a) in paragraph (3)—

(i) after the definition of “EEA regulator”, insert—

“ “establishment” has the meaning given in Article 2 of the Insolvency Regulation; ” ; and

(ii) after the definition of “home state regulator”, insert—

“ “the Insolvency Regulation” means Council Regulation (EC) No. 1346/2000 of 29th May 2000 on insolvency proceedings ( 22 ) ; ” ; and

(b) after paragraph (6), insert—

“ (7) In these Regulations, references to the centre of a person’s main interests are to be construed in accordance with Article 3 of the Insolvency Regulation. ” .

(3) In regulation 5A (European insolvency event)( 23 )—

(a) omit paragraph (4); and

(b) for paragraph (5) substitute—

“ (5) In this regulation “insolvency proceedings” and “liquidator” each has the meaning given by Article 2 of the Insolvency Regulation. ” .

(4) For regulation 7 (applications and notifications to the Board)( 24 ), substitute—

“ Applications and notifications to the Board

7. —(1) Except in a case to which regulation 7A applies, the prescribed requirement for the purposes of section 129(1)(b) and (4)(b) of the Act (applications and notifications for the purposes of section 128) ( 25 ) is that at least one of paragraphs (2), (4) and (5) applies to the employer.

(2) This paragraph applies to an employer if it is not—

(a) an individual;

(b) a company as defined in section 1(1) of the Companies Act 2006 ( 26 ) ;

(c) a company which may be wound up under Part 5 of the Insolvency Act 1986 (unregistered companies) ( 27 ) ;

(d) a partnership; or

(e) a relevant body as defined in regulation 5(2).

(3) For the purposes of paragraph (2)(c), an employer which is a company incorporated outside the United Kingdom is to be regarded as a company which may be wound up under Part 5 of the Insolvency Act 1986.

(4) This paragraph applies to an employer if it is an EEA insurer or an EEA credit institution.

(5) This paragraph applies to an employer if—

(a) the centre of the employer’s main interests is situated within the territory of a member State other than the United Kingdom;

(b) insolvency proceedings have been opened against the employer in a member State in accordance with Article 3 of the Insolvency Regulation; and

(c) the employer does not have an establishment in the United Kingdom.

(6) In this regulation references to a member State do not include Denmark. ” .

(5) In regulation 7A (applications and notifications to the Board – multi-employer schemes)( 28 ), for paragraph (2) substitute—

“ (2) In the case of a scheme, or a section of a scheme, to which this regulation applies, the prescribed requirement for the purposes of section 129(1A)(b) and (4)(a)(ii) of the Act (applications and notifications for the purposes of section 128) is that at least one of paragraphs (3), (5) and (6) applies to the employer.

(3) This paragraph applies to an employer if it is not—

(a) an individual;

(b) a company as defined in section 1(1) of the Companies Act 2006;

(c) a company which may be wound up under Part 5 of the Insolvency Act 1986;

(d) a partnership; or

(e) a relevant body as defined in regulation 5(2).

(4) For the purposes of paragraph (3)(c), an employer which is a company incorporated outside the United Kingdom is to be regarded as a company which may be wound up under Part 5 of the Insolvency Act 1986.

(5) This paragraph applies to an employer if it is an EEA insurer or an EEA credit institution.

(6) This paragraph applies to an employer if—

(a) the centre of the employer’s main interests is situated within the territory of a member State other than the United Kingdom;

(b) insolvency proceedings have been opened against the employer in a member State in accordance with Article 3 of the Insolvency Regulation; and

(c) the employer does not have an establishment in the United Kingdom.

(7) In this regulation references to a member State do not include Denmark. ” .

(6) In regulation 8 (applications and notifications to the Board – further provision)( 29 )—

(a) for paragraph (1), substitute—

“ (1) Except in a case to which regulation 8A applies, the prescribed period for making an application to the Board under section 129(1) of the Act (applications and notifications for the purposes of section 128) shall be the period of—

(a) 28 days; or

(b) such longer period of not more than three months as the Board may determine is reasonable in the circumstances of a particular case,

beginning with the date on which the trustees or managers of an eligible scheme become aware that the employer in relation to the scheme is unlikely to continue as a going concern. ” ; and

(b) in paragraph (2)—

(i) at the end of sub-paragraph (e) omit “and”;

(ii) at the end of sub-paragraph (f) insert “; and”; and

(iii) after sub-paragraph (f) insert—

“ (g) if the application was not sent to the Board within the period specified in paragraph (1)(a) of this regulation, the reasons for this. ” .

(7) In regulation 9 (confirmation of scheme status by insolvency practitioner)( 30 )—

(a) in paragraph (1)—

(i) in the opening words of sub-paragraph (a), for “a company” substitute “not an individual or a partnership”; and

(ii) in the opening words of paragraph (i) of sub-paragraph (a), for “the company” substitute “the employer”; and

(b) in the opening words of paragraph (2)(a), for “a company” substitute “not an individual or a partnership”.

(8) In regulation 10(3) (confirmation of scheme status by Board)( 31 )—

(a) in sub-paragraph (a), for the words “the employer is a company, an EEA credit institution or an EEA insurer” substitute “the employer is not an individual or a partnership”; and

(b) in sub-paragraph (c), omit the words “but is not an EEA credit institution or an EEA insurer”.

(9) In regulation 16 (restrictions on winding up, discharge of liabilities etc.)( 32 )—

(a) in the opening words of paragraph (1), for “subsection (2)” substitute “paragraph (2)”;

(b) before sub-paragraph (a) of paragraph (1) insert—

“ (za) a right or entitlement to benefits that are not money purchase benefits may be converted into, or replaced with, a right or entitlement to money purchase benefits under an eligible scheme are where, before the beginning of the assessment period in relation to the scheme, a person has—

(i) a right or entitlement under the scheme rules in respect of flexible benefits (as defined by section 74 of the Pension Schemes Act 2015 ( 33 ) ) that are not money purchase benefits;

(ii) notified the trustees or managers of the scheme that the person wishes to exercise an option under the scheme rules to convert those benefits (or a portion of them) into, or replace them (or a portion of them) with, money purchase benefits for the purpose of designating sums or assets as available for the payment of drawdown pension, dependants’ drawdown pension, nominees’ drawdown pension or successors’ drawdown pension (as defined by paragraphs 4, 18, 27B and 27G of Schedule 28 to the Finance Act 2004 ( 34 ) , respectively); and

(iii) complied with any requirements, and satisfied any conditions, to which the exercise of that option is subject; ” ;

(c) in paragraph (1)(a)—

(i) in paragraph (i), for “(salary related schemes: right to a statement of entitlement);” substitute “(right to statement of entitlement: benefits other than money purchase); and”; and

(ii) omit paragraph (ii); and

(d) in paragraph (2)—

(i) in the opening words, for “A transfer” substitute “A conversion or replacement of benefits under an eligible scheme under paragraph (1)(za), a transfer”; and

(ii) in sub-paragraph (b), after “reduce the” insert “value or”, and after “amount of” insert “the benefits (or the portion of them) to be converted or replaced,”.

(10) After regulation 17 (payment of scheme benefits)( 35 ), insert—

“ Exception to section 138(2A)

17A. —(1) Subject to paragraph (3), during an assessment period in relation to an eligible scheme, benefits in the form of a lump sum may be paid to a member under the scheme rules in the circumstances specified in paragraph (2).

(2) The circumstances specified for the purpose of paragraph (1) are that, before the beginning of the assessment period in relation to the scheme, the member has—

(a) a right or entitlement under the scheme rules in respect of flexible benefits (as defined by section 74 of the Pension Schemes Act 2015) that are not money purchase benefits;

(b) notified the trustees or managers of the scheme that the member wishes to exercise an option under the scheme rules to be paid an uncrystallised funds pension lump sum (as defined by paragraph 4A of Schedule 29 to the Finance Act 2004) in respect of those benefits (or a portion of them); and

(c) complied with any requirements, and satisfied any conditions, to which the exercise of that option is subject.

(3) A lump sum shall not be paid by virtue of this regulation unless the trustees or managers of the scheme—

(a) are satisfied that to do so is consistent with the objective of ensuring that the scheme’s protected liabilities do not exceed its assets or, if they do exceed its assets, that the excess is kept to a minimum; and

(b) reduce the amount of the lump sum to the extent necessary to ensure that it does not exceed the actuarial equivalent of the compensation that would be payable to the member in respect of the benefits (or the portion of them) in respect of which the lump sum is paid in accordance with the pension compensation provisions, if the Board were to assume responsibility for the scheme in accordance with Chapter 3 of Part 2 of the Act.

(4) For the purpose of paragraph (3)(b) the actuarial equivalent of the compensation that would be payable is to be calculated from tables designated by the Board for the purpose of paragraph 24(4) (commutation of periodic compensation) of Schedule 7 to the Act. ” .

Amendments to the Pension Protection Fund (General and Miscellaneous Amendments) Regulations 2006

6. —(1)The Pension Protection Fund (General and Miscellaneous Amendments) Regulations 2006( 36 ) are amended as follows.

(2) In regulation 8 (further provision for discharge of liabilities in respect of money purchase benefits), after paragraph (1) insert—

“ (1A) Where, on the date that the Board assumed responsibility for the scheme, the money purchase beneficiary—

(a) had attained normal minimum pension age, or was within six months of attaining that age; or

(b) met the ill-health condition in paragraph 1 of Schedule 28 to the 2004 Act ( 37 ) ,

the notice given by the Board under paragraph (1) shall also include the information listed in Part 1, and paragraph 12, of Schedule 10 to the Occupational and Personal Pension Schemes (Disclosure of Information) Regulations 2013 (information on the Pensions Guidance) ( 38 ) . ” .

(3) In regulation 9A (PPF money purchase lump sums)( 39 ), for paragraph (2) substitute—

“ (2) The first condition is that the member has attained normal minimum pension age or meets the ill-health condition in paragraph 1 of Schedule 28 to the 2004 Act. ” .

PART 4 Disclosure of information amendments

Amendments to the Occupational and Personal Pension Schemes (Disclosure of Information) Regulations 2013

7.The Occupational and Personal Pension Schemes (Disclosure of Information) Regulations 2013( 40 ) are amended as set out in regulations 8 to 10.

Amendment to regulation 2

8. —(1) In regulation 2(1) (interpretation), after the definition of “transferrable rights” insert—

“ “unfunded public service defined benefits scheme” has the meaning given in section 95(2C) of the 1993 Act (ways of taking right to cash equivalent) ( 41 ) ; ” .

(2) In regulation 2(2), for sub-paragraph (a) substitute—

“ (a) a member has an opportunity to transfer flexible benefits where—

(i) the member—

(aa) has transferrable rights in relation to flexible benefits; or

(bb) would have transferrable rights in relation to flexible benefits if the member stopped accruing rights to some or all of the flexible benefits (see sub-paragraph (b)),

and the making of a transfer or transfer payment in respect of the flexible benefits is not prohibited by section 135(4)(a) of the 2004 Act (restrictions on winding up, discharge of liabilities etc.) ( 42 ) ; or

(ii) the member has an opportunity to transfer accrued rights to flexible benefits out of the scheme under the scheme rules; ” .

New regulation 19A

9. After regulation 19 (first information on accessing benefits), insert—

“ Retirement risk warnings

19A. —(1) Subject to paragraphs (5) and (7), the trustees or managers of the scheme must give a retirement risk warning to a member in accordance with this regulation where they are giving a member—

(a) information in accordance with regulation 18A, 18B or 19 or the member has been given such information previously; and

(b) an application form, online access, information about access or any other method of access that enables the member to require the trustees or managers of the scheme to take any of the actions in paragraph (2).

(2) The actions referred to in paragraph (1)(b) are—

(a) the application of sums or assets held for the purpose of providing flexible benefits for purchasing an annuity;

(b) the payment of a lump sum in respect of flexible benefits; or

(c) the designation of sums or assets held for the purpose of providing flexible benefits as available for the payment of drawdown pension.

(3) A retirement risk warning under paragraph (1) must be given at the same time as the method of access in paragraph (1)(b) and before any of the actions set out in paragraph (2) are concluded.

(4) When giving a retirement risk warning to a member, the trustees or managers of the scheme must also give the member a statement that asks the member to note the importance of—

(a) reading the retirement risk warning; and

(b) accessing pensions guidance or independent advice.

(5) A retirement risk warning for any specific action in paragraph (2) need not be given to a member within 12 months of a retirement risk warning for that action having been given in accordance with this regulation to that member.

(6) For the purpose of—

(a) this regulation, “retirement risk warning” means a statement that sets out the characteristic attributes and features of an annuity, lump sum and drawdown pension referred to in paragraph (2) and the factors in paragraph (b)(iv); and

(b) sub-paragraph (a)—

(i) the statement must be generic in nature and not tailored to or based on the personal circumstances of any individual member;

(ii) the statement may be limited to the characteristic attributes and features of an annuity, lump sum or drawdown pension referred to in paragraph (2) in respect of which the trustees or scheme managers are giving the member a method of access in paragraph (1)(b);

(iii) characteristic attributes and features are those that have the potential to adversely affect the retirement income of any member or their widow, widower, surviving civil partner, nominee, successor or other dependant; and

(iv) the factors are those that have the potential to affect the appropriateness of an annuity, lump sum and drawdown pension for a member such as: the impact of health status and lifestyle choices; whether a member has dependants, is in debt or in receipt of means tested benefits; and any other relevant factors.

(7) Subject to paragraph (8)—

(a) a retirement risk warning under paragraph (1) need not be given where the trustees or managers of the scheme give the member an appropriate risk warning before any of the actions listed in paragraph (2) are concluded;

(b) an appropriate risk warning must be given either verbally or in writing; and

(c) for the purposes of sub-paragraphs (a) and (b), an appropriate risk warning is a statement—

(i) that sets out the risks associated with any of the actions listed in paragraph (2) that the member is proposing to require the trustees or managers of the scheme to take and that have the potential to adversely affect the retirement income of that member or their widow, widower, surviving civil partner, nominee, successor or other dependant; and

(ii) that is based on the characteristic attributes and features of an annuity, lump sum or drawdown pension referred to in paragraph (2) and answers to questions the trustees or managers of the scheme have asked the member in order to identify any factors or other variables that increase the risks referred to in paragraph (i).

(8) Paragraph (7) only applies where the trustees or managers of the scheme have—

(a) asked the member whether they have received pensions guidance or independent advice; and

(b) if the member has not received such guidance or advice, or is unsure, encouraged the member to use pensions guidance or to take independent advice to understand the options available to that member at retirement. ” .

Amendments to Schedule 2

10. —(1)Schedule 2 (basic information)( 43 ) is amended as follows.

(2) In paragraph 4B, at the beginning, insert “Subject to paragraph 4C”.

(3) After paragraph 4B, insert—

“ 4C. Paragraph 4B does not apply to a member of an occupational pension scheme that is an unfunded public service defined benefits scheme, unless it is a scheme in relation to which section 95(2A)(a)(i) of the 1993 Act has been disapplied, pursuant to section 95(2B) of that Act (ways of taking right to cash equivalent) ( 44 ) . ” .

(4) In paragraph 22B, at the beginning, insert “Subject to paragraph 22C”.

(5) After paragraph 22B, insert—

“ 22C. Paragraph 22B does not apply to a member of an occupational pension scheme that is an unfunded public service defined benefits scheme, unless it is a scheme in relation to which section 95(2A)(a)(i) of the 1993 Act has been disapplied, pursuant to section 95(2B) of that Act. ” .