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Pensions - Key legal issues guide
Winter 2017
Last updated: 2 January 2018 Note: This summary is intended to be a general guide only and it is not a substitute for legal advice.
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This document summarises key current and future legal issues that trustees and employers should be aware of in relation to their pension schemes. If you think any of these issues may be relevant to your scheme, we recommend you speak to your usual Eversheds Sutherland adviser.
This document is divided into the following sections:
| Current issues - key issues where action may be needed within the next three months
| On the horizon - key issues where action may be needed within the next three to twelve months
| General housekeeping - key issues that need regular/ongoing consideration
| Other issues of general interest
For a shorter summary of current issues that UK pension schemes and sponsors should be aware of, see our latest UK Pensions Agenda.
For an overview of current issues affecting pension schemes and sponsors across Europe, see our latest European Pensions Agenda.
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Contents
Current issues – where action may be needed within the next three months .............. 1
PPF levy 2018/19 .................................................................................. 2
Protected rights rules............................................................................. 3
Changes to money laundering rules ......................................................... 3
New data protection rules ...................................................................... 4
Auto-enrolment contribution increases ..................................................... 4
DC benefits with guaranteed element ...................................................... 5
DC member borne commission ............................................................... 5
DC costs and charges ............................................................................ 6
Money purchase annual allowance ........................................................... 6
Death benefits for same sex spouses and civil partners .............................. 7
Excepted group life assurance schemes ................................................... 7
On the horizon – where action may be needed within the next three to twelve months 8
Guide to the Chair’s statement ................................................................ 9
Cyber security ...................................................................................... 9
Brexit and pensions ............................................................................. 10
General housekeeping issues requiring regular review/consideration ....................... 11
VAT on scheme costs ........................................................................... 12
Regulator governance campaigns .......................................................... 12
Pension liberation scams - developments ............................................... 13
Equalisation - GMPs ............................................................................. 14
Trustee knowledge and understanding (TKU) .......................................... 15
Other issues of interest ..................................................................................... 16
Safeway equalisation case .................................................................... 17
Investment consultants – competition referral ........................................ 17
Pensions Regulator intervention ............................................................ 17
Auto-enrolment review ........................................................................ 18
Master trusts ...................................................................................... 18
Pension increases ................................................................................ 19
DB White Paper ................................................................................... 19
Current issues – where action may be needed within the next three months
Pensions - Key Legal Issues Guide Winter 2018
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Subject Issue Timing/action
PPF levy 2018/19 The PPF published its final levy rules for 2018/19 in December 2017. Most of the proposals in the PPF’s
consultation last spring have been adopted. Some of the key points are listed below.
■ The levy estimate is £550m, about 10% less than the previous year’s estimate.
■ The existing ten levy band structure will be maintained and changes to the Experian scorecard model
(including the use of credit ratings and an industry specific model for financial institutions) will proceed
broadly as proposed.
■ The deficit reduction contribution certification system will be simplified.
■ A “guarantor strength report” will need to be prepared by a professional adviser before certification of Type A
contingent assets (group company guarantee) that are expected to result in a levy reduction of £100,000 or
more. The report will need to demonstrate that the guarantor could meet the guarantee in the event of the
insolvency of the employer. Trustees will be expected to complete a report with each re-certification. This is
predicted to affect one in five guarantees.
■ Changes will be made to contingent asset documentation, with new standard forms due to be published in
mid-January. These new forms will need to be used for new contingent assets entered into after publication.
■ Some existing Type A (group company guarantee) and Type B (security over cash, real estate or securities)
contingent assets will need to be re-executed on a new standard form before the next (2019/20) levy year.
The PPF has now clarified that this applies only to those which include a fixed cap on the amount guaranteed
(ie not those limited only by reference to section 179 or section 75 liabilities). This should reduce significantly
the number of contingent assets requiring re-execution.
■ The deadlines for providing information to the PPF have been published and can be viewed at the end of its
policy statement. Note that the key deadline for the provision of much information is Saturday, 31 March
2018, which is over the Easter weekend.
DB schemes should now
start planning their levy
reduction measures.
Note in particular the new
requirement to obtain a
guarantor strength report
in respect of Type A
guarantees involving a
levy saving of £100,000
or more. If required,
covenant advisers should
be engaged as soon as
possible.
Type A and B documents
with a fixed cap will need
to be re-executed (most
likely by end of March
2019). This will require
significant advance
planning.
Pensions - Key Legal Issues Guide Winter 2018
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Subject Issue Timing/action
Protected rights rules
Where a scheme was contracted-out on a money purchase basis before 6 April 2012, its rules will have contained
provisions for protected rights (money purchase benefits provided in place of the state second pension). In some
cases, rules may have been drafted in such a way that the abolition of protected rights did not automatically mean
that the scheme ceased to have to make any special provision in relation to them. To deal with this, trustees were
given a statutory power to modify rules by resolution to remove protected rights provisions. This power falls away
if not exercised before 6 April 2018.
Schemes previously
contracted out on a
money purchase basis
should check whether a
resolution to remove
protected rights provisions
has been passed. If not,
consider whether one is
required before 6 April
2018.
Changes to money laundering rules
During summer 2017, the Government issued new money laundering regulations aimed at preventing money
obtained as a result of criminal activities from appearing to come from legitimate sources.
The regulations contain obligations that apply to trusts in general and, as such, are relevant to pension scheme
trustees. The record keeping requirements that apply to trustees under these regulations are already in force.
And, while not relevant to most trustees, those who pay certain types of taxes will also need to register with
HMRC’s new Trusts Registration Service, in some cases as early as January 2018 – see updated HMRC guidance
here. Additional obligations also apply to professional trustees.
Compliance should not be too onerous. However, action is required immediately.
For more information, please click here and here.
Trustees must start
keeping money laundering
records immediately. They
should decide urgently
whether they need to
register with HMRC.
Professional trustees
should also be aware of
their additional money
laundering obligations.
Money laundering
compliance should be
added to scheme risk
registers.
Pensions - Key Legal Issues Guide Winter 2018
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Subject Issue Timing/action
New data protection rules
The European General Data Protection Regulation (GDPR) will come into force on 25 May 2018. There is not
much time left to plan and take action to meet its new requirements.
Trustees and sponsors will have material new obligations in relation to personal data they hold and members will
need to be given additional information. Appropriate internal policies must be put in place and agreements with
third parties who handle data will need to be reviewed and most likely updated. In general, trustees will also
need to have registered as a data controller with the Information Commissioner’s Office. Significant fines may be
levied for non-compliance.
For more information, please click here.
GDPR compliance plans
should now be well
advanced. Trustees and
employers who have not
yet done so should put in
place an action plan
urgently.
Auto-enrolment contribution increases
The transitional period for total minimum AE contributions of 2% (with at least 1% from the employer) expires on
5 April 2018 (previously, this was scheduled for 30 September 2017).
The next transitional period (with total contributions of 5% and employer contributions of 2%) expires on 5 April
2019 (previously, this was scheduled for 30 September 2018).
Check what members
were told in relation to
minimum contributions
and when they would
increase. If rules hard-
code the old phasing
dates, members may need
to be consulted (and rules
amended) if revised dates
are used. Note that there
may also be complexity
around payroll systems /
pro-rating increases for
the first month.
Pensions - Key Legal Issues Guide Winter 2018
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Subject Issue Timing/action
DC benefits with guaranteed element
Where members flexibly access or transfer DB benefits or so-called “safeguarded flexible benefits” (DC benefits
that have a guaranteed element) they must take independent advice if the value of their benefits exceeds
£30,000. Changes are being made to the way safeguarded flexible benefits are valued for these purposes. The
amendments take effect from 6 April 2018 but transitional provisions have applied since 1 October 2017.
From 6 April 2018, there is also a new requirement to give members with safeguarded flexible benefits (of any
value) who ask about transferring or converting them personalised risk warnings explaining the guarantee and
what it is worth, together with projections. In some cases it may not be straightforward to assess whether
benefits are covered by the new requirements or not.
For more information, please click here.
Consider whether there
are any DC benefits in
your scheme with a
guaranteed element that
could be covered by the
new requirements.
Consider how to
communicate to
members.
DC member borne commission
Member borne commission has been banned since 6 April 2016 for new contracts set up by occupational schemes
that are qualifying schemes for auto-enrolment purposes and include money purchase benefits.
From 1 April 2018, the ban is extended so that service providers must also comply with it for contracts entered
into before 6 April 2016.
Trustees should expect to
receive written
confirmation from
providers that they are
complying with the ban.
Pensions - Key Legal Issues Guide Winter 2018
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Subject Issue Timing/action
DC costs and charges
Trustees of most schemes providing money purchase benefits are required to report on scheme transaction costs
in the Chair’s statement (within seven months of the end of each scheme year).
From 3 January 2018, the FCA’s conduct of business sourcebook is amended so that fund managers are under a
duty to give information on transaction costs on request to schemes that invest directly or indirectly in their funds.
Separately, in December 2017, the DWP concluded its consultation on the disclosure of costs, charges and
investments in DC occupational schemes. This proposes that:
■ the Chair’s statement is extended to include more detail on costs and charges, including an illustration of their
compounding effect
■ costs and charges information is made available on the internet, and
■ schemes must disclose to members, on request, the “top level” pooled funds in which the members have
been invested in the previous scheme year.
A consultation response is currently awaited and changes are expected to come into effect from 6 April 2018. The
FCA is planning to consult on similar rules for workplace personal pension schemes during 2018.
Trustee should ensure
they have received
information on transaction
costs for the Chair’s
statement.
Start planning for these
disclosure changes. Watch
out for the final
regulations and ensure
that any new
requirements are met by
the expected “in force”
date of 6 April 2018.
Money purchase annual allowance
The money purchase annual allowance (MPAA) is triggered where an individual has flexibly accessed money
purchase benefits from any arrangement (by taking their benefits as a lump sum or through flexi-access
drawdown) and limits the annual amount that members can subsequently accrue in any money purchase
arrangement.
The MPAA was due to be reduced from £10,000 to £4,000 on 6 April 2017. However, the relevant legislative
provisions were dropped at the last minute before the Finance Act 2017 was finalised. The Government now
reinstated this change effective from 6 April 2017 via the Finance (No.2) Act 2017.
Consider member
communication and
whether “scheme pays”
will be available to meet
tax charges arising.
Pensions - Key Legal Issues Guide Winter 2018
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Subject Issue Timing/action
Death benefits for same sex spouses and civil partners
In July 2017, the Supreme Court handed down its judgment in Walker v Innospec Ltd and others. This case looks
at a defined benefit scheme where the survivor’s pension payable to a surviving civil partner or same sex spouse
is restricted so that it reflects only the member's pensionable service since 5 December 2005, the date on which
the Civil Partnership Act 2004 came into force. The Supreme Court overturned the previous Court of Appeal
decision and held that this restriction is unlawful.
The precise implications for schemes that apply the December 2005 exemption will need to be considered
carefully. Affected schemes will most likely need to change their benefit structures in respect of surviving civil
partners and same sex spouses going forward, as well as facing the prospect of retrospectively re-calculating
benefits already paid.
We understand the Government is currently considering what, if any, action to take in relation to same sex
partner pension benefits following this case. It is not clear what is being contemplated or what the Government’s
timescales are.
For more information on this case, please click here.
The first step is for
trustees and employers to
check the rules of their
schemes to identify
whether they have to date
applied the statutory
exemption on same sex
survivor benefits.
Schemes that have
applied the exemption will
need to take advice on
their position and are
likely to have to take
steps to remove it.
Excepted group life assurance schemes
Employers with staff affected by previous reductions in the lifetime allowance could consider setting up an
excepted group life assurance scheme to provide death benefits. For more information, please click here.
However, note that the Finance Act 2017 removes some of the income tax and NICs advantages of offering an
excepted group life scheme via a salary sacrifice/flexible benefit arrangement.
Employers offering an
excepted group life
scheme via salary
sacrifice/flex should
consider the impact of the
Finance Act 2017
immediately.
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On the horizon – where action may be needed within the next three to twelve months
Pensions - Key Legal Issues Guide Winter 2018
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Subject Issue Timing/action
Guide to the Chair’s statement
In November 2017, the Regulator published a new “quick guide” to the Chair’s statement, which is designed to be
read alongside its DC code of practice and accompanying “how to” guides.
The guide sets out the legal requirements in relation to the Chair’s statement (which most occupational pension
schemes providing money purchase benefits are required to prepare within seven months of the end of each
scheme year) and the Regulator’s expectations as to how trustees should meet them. It also includes a checklist
on what the statement needs to include to be legally compliant. Much of the content reflects what the regulations
require but in some areas the Regulator appears to have particularly high expectations.
Trustees of schemes with
money purchase benefits
should be aware of this
guide.
Cyber security The Pensions Regulator is urging trustees to ensure they (and their administrators) have suitable cyber security
strategies in place. This should include measures to protect against cyber crime and attacks that could disrupt
scheme activities.
Trustees should
understand the risks
posed by cyber attacks,
and ensure that suitable
measures are put in place
to protect schemes.
Pensions - Key Legal Issues Guide Winter 2018
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Subject Issue Timing/action
Brexit and pensions It currently appears that the UK will leave the EU by the end of March 2019. Although it will be some time before
the terms of the UK’s future relationship with the EU are known, there are things that schemes and employers can
consider and plan for now, and changes they can start to make, to help protect their interests.
In the short term, Brexit is unlikely to have a significant effect on the legal and regulatory framework for UK
pension schemes. However, in the longer term, it could open the door for UK legislation to deviate from EU
requirements in some respects.
Meanwhile, the new IORP Directive will introduce new governance and disclosure requirements for occupational
pension schemes in the EU. It will also relax the funding requirements for cross-border schemes and introduce
greater member protection on cross-border transfers. Technically, this needs to be implemented into UK law by
mid-January 2019. However, as the deadline is so close to the UK’s expected exit from the EU, it is currently
unclear to what extent the UK Government will implement it. For more information on the new IORP Directive,
please click here.
For more details on the pensions implications of Brexit, please see our Speedbrief here and the Regulator’s
statement here. We will keep you updated on developments relating to pensions and to other areas of law via our
Brexit hub.
Trustees’ and employers’
main immediate concerns
will be around funding,
investment and covenant.
Further thought will need
to be given to other action
points as matters develop.
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General housekeeping issues requiring regular review/consideration
Pensions - Key Legal Issues Guide Winter 2018
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Subject Issue Timing/action
VAT on scheme costs Two European Court of Justice cases (Case C-26/12 PPG Holdings BV and Case C-464/12 ATP Pension Service
A/S) looked at the VAT position in relation to management and administration costs of DB and DC occupational
schemes respectively. As a result, HMRC reviewed its policy and extended the current 70:30 split approach
outlined in HMRC Notice 700/17 until 31 December 2017.
HMRC has now updated its VAT manual to say that that the current 70:30 approach may be maintained for the
time being, with an option for schemes and employers to use alternative approaches (such as VAT grouping or
tripartite contracts) where they consider that these may be more appropriate.
For noting.
Regulator governance campaigns
The Regulator carried out two surveys looking at compliance with its DB funding code and DC governance code.
It says that the results of both are disappointing in relation to small and medium sized schemes and highlight
major gaps in the standards expected by the Regulator. In particular it highlights the following failings:
■ they tend to display poorer governance standards, for instance they place less focus on training
arrangements, regular board assessments, effective internal controls and oversight of third parties
■ many small and medium DC schemes, (including those used for automatic enrolment) are not meeting
standards around administration (eg ensuring prompt and accurate transactions), investments (setting
appropriate investment strategy for the default fund) and value for members (assessing quality of services
provided to members), and
■ significant issues also remain among DB schemes, in particular around integrated risk management and fair
treatment of the scheme.
The Regulator’s 21st century trusteeship campaign aims to drive up the standards of governance across pension
schemes. The programme includes a series of communications to make clear what the Regulator’s expectations
are of those responsible for managing a scheme effectively. The Regulator intends to build on this resource in
the coming months.
Trustees should consider
regularly the extent to
which their scheme is
meeting the standards
expected by the
Regulator.
Pensions - Key Legal Issues Guide Winter 2018
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Subject Issue Timing/action
Pension liberation scams - developments
The Government consultation on pension scams looked at whether changes should be made to existing
legislation to limit the statutory right to transfer to some occupational schemes. It also considered a ban on cold
calling and restrictions on which companies can apply to register a scheme. For more information on the scams
consultation, click here.
The response to this consultation was published in August 2017 and set out the intended next steps which
include:
■ a cold calling ban in relation to pensions
■ limiting the statutory right to transfer so that it covers only FCA approved personal pension schemes,
authorised master trusts and transfers where a genuine employment link to the receiving occupational
pension scheme can be evidenced, and
■ tightening HMRC rules to prevent the opening of fraudulent pension schemes.
Many details remain to be ironed out. These include considering how legitimate transfers to QROPS can be
catered for. Apart from measures to make it harder to open scam schemes (in respect of which legislation has
now been published), the Government did not set out a firm timetable for these changes.
However, there has been pressure, including from the Work and Pensions Committee, to ban cold calling
urgently and the Government has now indicated that it plans to bring forward draft legislation in early 2018.
Trustees and
administrators should
keep transfer processes
under review and await
further developments.
Pensions - Key Legal Issues Guide Winter 2018
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Subject Issue Timing/action
Equalisation - GMPs Since the European Court of Justice case of Barber v GRE was decided on 17 May 1990, pension schemes have
had to provide benefits on an equalised basis. It has long been unclear whether, and if so how, inequalities
caused by GMPs accrued between May 1990 and April 1997 should be equalised.
In November 2016, the Government issued a proposed methodology for equalising for the effect of GMPs. This
methodology was developed after extensive engagement with the industry and proposes a one-off calculation of
whether a male or female member would be better off following conversion of the better benefit to non-GMP
benefits. Existing conversion legislation would be amended to facilitate this. The Government responded to the
consultation in March 2017 and confirmed that it intends to go ahead with its proposals – it does not feel that
they will be affected by Brexit as equal treatment obligations are already enshrined in UK law.
However, a legal claim in relation to GMP equalisation was issued against Lloyds Bank in 2017. The Government
may revisit its proposals depending on the outcome of that case, which is expected to be heard by the High
Court during 2018.
Our Speedbrief on the Government’s proposals is here.
Monitor developments.
Pensions - Key Legal Issues Guide Winter 2018
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Subject Issue Timing/action
Trustee knowledge and understanding (TKU)
Under the Pensions Act 2004, trustees are required to have knowledge and understanding of the:
■ law relating to pensions and trusts, and
■ principles relating to scheme funding and investment.
The Pensions Regulator’s TKU code of practice emphasises the need for trustees to read their scheme
documentation thoroughly. Trustees are also expected to complete the Regulator’s online trustee toolkit.
The Regulator’s discussion paper on 21st century trusteeship and DC Code of Practice also emphasise the need
for trustees to have a training and development plan in place.
Trustees should undertake regular training to keep up to date. In addition, trustees of DC schemes are now
required to describe in their annual governance statement how they have met the TKU requirements during the
scheme year and how the combined knowledge and understanding of the trustees (and the advice available to
them) enables them to properly exercise their functions.
Our introductory training courses, “Introduction to DB pensions” and “Introduction to DC pensions”, are intended
to help trustees meet this statutory requirement. We also offer bespoke training and run regular complimentary
pension breakfast briefings.
If you would like to find out more about our pensions training, please ask your usual Eversheds Sutherland
adviser.
Assess your training
needs and attend relevant
training.
DC trustees must be
prepared to report on how
they have met their TKU
requirement each year in
their annual Chair’s
governance statement.
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Other issues of interest
Pensions - Key Legal Issues Guide Winter 2018
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Subject Issue
Safeway equalisation case
It had been understood that where a scheme attempted to equalise by an announcement, subsequently confirmed by deed, the deed
could not be backdated to the date of the announcement as this would amount to retrospective equalisation which was not permitted
under European law.
The Court of Appeal has now cast doubt on that view in Safeway v Newton and will refer the question of retrospective deeds of
amendment where the rules specifically allowed the effective date of a deed to be the date of an earlier announcement to the Court of
Justice of the European Union. It may take some years for this issue to be heard. However, in the meantime, if a similar situation is
identified it should no longer be assumed that equalisation could not be effective from the date of an announcement where later
confirmed by a deed (in line with the rules).
Investment consultants – competition referral
Following a decision by the Financial Conduct Authority in September 2017, the Competition and Markets Authority (CMA) launched a
market investigation into the supply and acquisition of investment consultancy and fiduciary management services to institutional
investors and employers.
The CMA is carrying out hearings and roundtables with interested parties as well as a survey focusing specifically on trustees. It will
publish a report containing provisional findings (and, if it finds that there is an adverse effect on competition, provisional remedies) and
plans to conclude the investigation by March 2019.
We identified some of the key issues arising from previous stages of this process together with suggested actions here.
Pensions Regulator intervention
A noticeable theme during 2017 was the Pensions Regulator becoming more interventionist in relation to DB scheme valuations. In
particular it:
■ is committed to intervening in more valuation cases than in the past
■ where it does get involved, it is doing so in a more interventionist, rigorous and proactive manner than before, with much less
tolerance for late valuations, and
■ is willing to consider escalating action more quickly and exercising the full range of its powers – including those which have never
been used in the past. This includes its powers under section 231 of the Pensions Act 2004 to determine valuation assumptions in
the event of a “failure to agree” by the parties.
For more information, please click here.
Pensions - Key Legal Issues Guide Winter 2018
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Subject Issue
Auto-enrolment review
In December 2017, the Government published its review of automatic enrolment. It concludes that auto-enrolment is working and it
plans to build on its success. The key proposals, to be implemented by the mid-2020s are:
■ the lower age limit for auto-enrolment will be reduced from 22 to 18
■ pension contributions will be calculated from the first pound earned, rather than from the lower earnings limit, currently £5,876
■ the “entitled workers” category will be removed
■ those earning at or below £10,000 will not be automatically enrolled - however if they opt in they will also benefit from pension
contributions on 8% of all their earnings
■ the trigger for auto-enrolment will remain at £10,000 subject to annual review, and
■ the Government will continue to explore whether additional changes need to be made in relation to atypical workers and to
improving saving levels among the self-employed.
Master trusts The Pension Schemes Act 2017 sets out a regime for the authorisation and supervision of money purchase master trusts by the Pensions
Regulator. However, it focuses largely on general principles and most of the detail of the new regime was left to regulations.
On 30 November 2017, the DWP issued a consultation paper on draft regulations which are intended to clarify how the new regime will
work, which schemes it will apply to and what such schemes will need to do to achieve (and maintain) authorisation.
In general, where a scheme provides both defined benefit and money purchase benefits, the master trust regime will apply to the money
purchase benefits. There are some exemptions, including where the only money purchase benefits are AVCs or transferred-in benefits
for members who are actively accruing defined benefits. However, there is currently no exemption for most (non-statutory) industry-
wide or not-for-profit schemes.
Consultation on the draft regulations closes on 12 January 2018 and final regulations are expected to come into force in October 2018.
The Regulator plans to publish a code of practice on master trust authorisation in early 2018.
For more information, please click here.
Pensions - Key Legal Issues Guide Winter 2018
19
Subject Issue
Pension increases
The High Court case, British Airways plc v Airways Pension Scheme Trustee Limited, in which Eversheds Sutherland acted for the
trustees, looks at the exercise by trustees of a unilateral amendment power to introduce a new provision into scheme rules which
required them to consider annually whether to award a discretionary pension increase in addition to that provided by the rules. BA
complained to the court that both the scheme amendment and subsequent exercise of the trustees’ discretionary power were improper
and should be set aside. The High Court found in favour of the trustees but BA has appealed the decision and the Court of Appeal
hearing is listed for May 2018.
For further information on the BA judgment and appeal, please click here and here.
A number of cases looking at how increase provisions in scheme rules should be interpreted (and whether they allow CPI to be used in
place of RPI) continue to progress through the courts. In the Thales case, the High Court considered what the “nearest alternative”
index to RPI was, concluding that it was revised RPI. In December 2017, the High Court considered whether BT could switch the
measure of inflation used under a section of its scheme from RPI to CPI – the judgment is awaited. Leave to appeal to the Supreme
Court has been granted in the Barnardo’s case, which is due to be heard in June 2018 and looks at the meaning of a “replacement
index”.
There is still no real certainty as to how increase provisions should be interpreted. When considering whether a shift from RPI to CPI (or
another index) is possible, the outcome will depend on the precise wording of the scheme rules.
DB White Paper In February 2017, the Government published a Green Paper that looked at what changes may be made to ensure the long term
sustainability of DB arrangements. Our Speedbrief on the Green Paper is here.
Following on from this, a White Paper is expected to be published by late February 2018. Press reports have suggested that areas of
focus will include consolidation of schemes, benefit simplification and Regulator powers but that any resulting legislation is unlikely to be
enacted before 2020.
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