Pension Schemes Act 2021 Under the Microscope – TPR Consultation on the new Criminal Sanction Powers

Human-ResourcesWill The Pensions Regulator (TPR) take a similar approach to the Financial Conduct Authority (FCA) when initiating criminal proceedings?

Background

The long-awaited Pension Schemes Act 2021 (the Act) received Royal Assent on 11 February 2021. Within the Act, new offences have been inserted into the Pensions Act 2004 (PA04) which include Section 58A (avoidance of employer debt) and Section 58B (conduct risking accrued scheme benefits), both carrying a risk of imprisonment for up to seven years.

On 11 March 2021, TPR published a draft policy outlining its approach on how it will use its new criminal powers to investigate and prosecute those who avoid employer debts or put member benefits at risk.

The approach will be subject to the consultation it has also published and the final policy will be issued later in the year. The criminal sanctions will not come into force until the autumn of 2021 and are not expected to have retrospective effect, although TPR has said that evidence pre-dating the implementation date may be taken into account, as regards the intent of the parties.

This blog covers some of the practical points that are worthy of note.

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Free And Extended COBRA Coverage Under The American Rescue Plan Act OF 2021

Section 9501 of the American Rescue Plan Act of 2021 (the “ARPA”)[1] requires employers to extend offers of free COBRA coverage to certain individuals for the period from April 1, 2021 through September 30, 2021.  The ARPA then provides tax credits as means of offsetting the costs of the free COBRA coverage.  The law also requires employers to extend offers of COBRA coverage to other individuals whose right to COBRA coverage previously ended.

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GMP Equalisation Under the Microscope – Zooming in on Outstanding Top-ups

Human-ResourcesShould receiving scheme trustees chase CETV top-ups?

Background

It is currently generally accepted that trustees of defined benefit (DB) pension schemes are obliged to equalise benefits between male and female members to correct inequalities in guaranteed minimum pensions (GMPs), and that this extends to transferred-in benefits. Following the most recent Lloyds judgment, we now also know that transferring scheme trustees have an obligation to proactively consider topping-up individual statutory transfers (CETVs) where the transfer was less than it ought to have been as GMP equalisation benefit adjustments were not taken into account when the transfer was calculated. As a trustee of a DB scheme you may well be considering how to approach paying CETV top-ups. But the recent Lloyds judgment also presents a potential opportunity to turn around and look the other way, at CETVs received into your scheme. Continue Reading

GMP Equalisation Under the Microscope – Claims for GMP Equalisation Top-ups to Historic Transfers

Human-ResourcesWill the number of transfer top-up claims be any more predicable than the weather – can we expect a blizzard or a light flurry?

Shortly after the recent High Court decision on the issue of guaranteed minimum pension (GMP) equalisation and historic transfers (the latest ruling in legal proceedings relating to a number of pension plans connected with the Lloyds Banking Group) we published a summary of the judgment and our initial reaction. Over the coming weeks we will be looking at some of the key issues raised by the decision in a series of blogs. In this first instalment we consider whether trustees of pension plans are likely to be inundated with claims for a “top-up” payment by former members who took transfers out of their pension plans, where those transfer payments would have been higher if the transferring scheme had equalised benefits between male and female members for the effect of unequal GMPs. Continue Reading

New EEOC Proposed Wellness Plans Regulations – Trouble for Participatory Wellness Plans

The Equal Employment Opportunity Commission (“EEOC”) recently proposed regulations pertaining to employer wellness programs that, as will be explained below, may concern employers that have “Participatory” wellness plans. The proposal can be found at https://www.eeoc.gov/regulations/rulemaking.[1]

Current Wellness Plan Rules under Other Laws

To understand the EEOC’s proposal, one must first take note of the other pre-existing wellness plan rules. In general, those rules are found in ERISA[2] and the Public Health Service Act,[3] and apply to employee group health plans.

Beginning in 1996 with the passage of HIPAA,[4] federal law has prohibited employer group health plans from discriminating against employees (and covered dependents) based on “health status-related factors.”  Nevertheless, certain types of wellness plans are permitted.

Subsequent DOL regulations[5], with modifications made by the Affordable Care Act,[6] established rules that regulate wellness plans, categorizing them as:

  • Participatory Plans,
  • Activity Based Plans, and
  • Outcome Based Plans

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It’s (Almost) Here! The Pension Schemes Act 2021

Houses of Parliament from the South BankIt has been a long and tortuous process, but the pension schemes bill has finally completed its passage through parliament and we just await the formality of Royal Assent before we have the Pension Schemes Act 2021 (the Act). Well done to Pensions Minister, Guy Opperman, for (almost) achieving his goal to pass this legislation in 2020 – not an easy task when parliament has been diverted by COVID-19 and Brexit.

I will start with a few comments on the most publicised aspects of the Act, i.e. the new powers given to The Pensions Regulator (TPR) to impose criminal penalties and fines, and anticipated requirements relating to notifications about corporate sales and debt security.

Lawyers like certainty, but the Act will be less than certain in a number of key areas. Much is left to TPR’s discretion. We all want the interests of scheme members to be protected and we all want criminal activity (or sharp practice) to be curtailed, but we do not want reasonable corporate activity to be stifled merely due to the presence of a defined benefit (DB) scheme within a corporate group. Common sense must be allowed to prevail. I urge all interested parties to engage with TPR’s consultations on how the new powers and obligations should be exercised to ensure that we have a workable and balanced regime.

Here are my thoughts on some specific points. Continue Reading

Stimulus Bill Extends the Availability of Student Loan Forgiveness

Section 2206 of the CARES Act allowed an exclusion of up to $5,250 from an employee’s gross income, if an employer paid principal or interest on an employee’s “Qualified Education Loan”.

Section 2206 of the CARES Act was only designed to be in effect for calendar year 2020. However, The Consolidated Appropriations Act, 2021 (the “CAA”) extends this provision of the law through December 31, 2025.

This provision of the CAA is in Section 120 of Division EE, called “The Taxpayer Certainty and Disaster Tax Relief Act of 2020”.

It does not appear that during 2020, many employers decided to provide student loan forgiveness as an employee benefit. Given the pandemic, that is certainly understandable. However, going forward, it might be something that employers might find more attractive as a recruiting or retention tool. Thus, the following is a brief refresher on this benefit. Continue Reading

Qualified Disaster Tax Relief – Retirement Plans and Employee Retention Credits

Besides the COVID-19 pandemic, 2020 has also had its share of other disasters, including hurricanes, floods and fires.

The Consolidated Appropriations Act, 2021 (the “CAA”) has provisions that are designed to provide tax relief for individuals and employers who have been adversely affected by one of the numerous federally declared “Qualified Disasters”.

These provisions of the CAA are found in Sections 301 through 306 of Title III, of Division EE, which is called “The Taxpayer Certainty and Disaster Relief Act of 2020” (the “2020 Tax Relief Act”).

In this blogpost, we will focus on Sections 301 through 303 of the 2020 Tax Relief Act, which address (i) tax-qualified retirement plans, and (ii) employee retention tax credits for employers. Continue Reading

Stimulus Bill Extends the Availability of Employee Retention Credits

The Consolidated Appropriations Act, 2021 (the “CAA”) extends through June 30, 2021, the Employee Retention Credit provisions of Section 2301 of the CARES Act. It also favorably modifies the rules for claiming the Employee Retention Credits.

These changes are generally effective as of January 1, 2021. These provisions of the CAA are found in Sections 206 and 207 of Division EE, called “The Taxpayer Certainty and Disaster Relief Act of 2020”. Continue Reading

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