Philip Freeman Mobile Welders Limited v The Pensions Regulator

A tribunal should not strike out a regulatory reference where disputed facts are material to jurisdiction and have not been properly evaluated. Whether a statutory notice was issued is a factual question distinct from whether receipt is presumed or deemed. Presumptions concerning receipt under regulation 15 of the Employers’ Duties (Registration and Compliance) Regulations 2010 are rebuttable. They must be read consistently with section 7 of the Interpretation Act 1978, as applied through the Pensions Act 2004. Evidence capable of rebutting the presumption must be considered, even where it may ultimately prove unpersuasive. A regulator’s decision not to conduct a review is not a completed review for the purposes of section 44 of the Pensions Act 2008.

The appellant challenged fixed and escalating penalty notices issued by The Pensions Regulator under the Pensions Act 2008. It maintained that the notices had not been received and asked for a review. The Regulator declined to conduct a review because the request was out of time.

The First-tier Tribunal struck out the references, holding that no valid review had occurred and that it lacked jurisdiction. The appellant appealed on grounds concerning whether the notices had been issued, whether receipt was irrebuttably presumed, and whether the Regulator had completed a review.

The appeal was allowed. The First-tier Tribunal’s decision was set aside for error of law and the references were remitted to a differently constituted tribunal.

1. Completed review. The Regulator’s letter stated that it had decided not to carry out a review because the application was late. It therefore did not demonstrate that a review had been conducted or completed under sections 43 and 44 of the Pensions Act 2008. The third ground failed.
2. Issue and receipt are distinct. Whether notices were actually issued by post is a factual issue. Only after that issue is resolved does the question of any presumption concerning receipt arise. Sections 35, 40, 41, 43 and 44 of the Act depend on the notice having been issued as a matter of fact.
3. Strike-out error. The appellant’s evidence concerning emails, postal difficulties and the improbability of allowing a substantial debt to accrue was relevant to whether the notices had been issued and received. The First-tier Tribunal failed to weigh that evidence. It was wrong to determine contested jurisdictional facts summarily under rule 8 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.
4. Rebuttable presumption. Regulation 15(4) of the Employers’ Duties (Registration and Compliance) Regulations 2010 does not create an irrebuttable presumption of receipt. Section 303(6) of the Pensions Act 2004, section 144A of the Pensions Act 2008 and section 7 of the Interpretation Act 1978 indicate that deemed service may be rebutted by evidence. Construing the regulation otherwise would produce an irrational disjunction by treating a person as having received a notice that they had proved was not received.
5. The fresh tribunal must assess the competing evidence and decide whether the notices were issued and received, and whether the references satisfy the statutory jurisdictional conditions. The Upper Tribunal’s decision on error of law did not determine the merits.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal against the First-tier Tribunal’s decision dated 2 October 2019, set that decision aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, and remitted the case to a fresh tribunal.
• First-tier Tribunal (General Regulatory Chamber): struck out the references under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, holding that it lacked jurisdiction.