Trustees of many defined benefit pension schemes are accelerating moves towards buyout, aided by recent market improvements. While the immediate focus may be on completing the buyout, trustees should plan ahead for the scheme wind up and consider how they will be protected if existing exoneration and indemnity provisions fall away. Trustees will want to protect themselves from the risk of personal liability (on a “joint and several” basis) if future claims are made. This can be a difficult area to discuss (no-one wants to get anything wrong, after all) – but it is best to fully consider trustee protection at an early stage.
In my Pensions Life Hack I offer my tips around trustee protection on scheme wind up.
Many pension scheme trustees and employers aspire to undertake a risk transfer transaction, typically an insurance company buy-out for defined benefit (DB) schemes or a transfer to a master trust for defined contribution (DC) schemes. In each case, this will ultimately herald the termination of the pension scheme and an end to all governance systems. Recent improvements in scheme funding mean that some DB schemes are reaching that point earlier than expected. For example, what could have been a five-year path to buy-out may now be a two-to-three-year journey plan.
This means that many trustees are now considering to what extent general code compliance needs to be factored into the end game. Does an effective system of governance (ESOG) need to be built regardless? With the first “own risk assessment” (ORA) not due until Spring 2026 (at the earliest), what needs to be done in relation to schemes that will have wound-up by then or those nearing the finish line?
Questions around the “end game” for DB schemes dominate the pensions press at the moment. The amount of tax due on authorised surplus payments to employers reduced from 35% to 25% from 6 April 2024 and we await the outcome of a government consultation on options for DB schemes (which includes changing some of the rules around surplus extraction). Some schemes may be hitting the pause button on derisking plans until further options are considered. For other schemes, derisking plans continue to be firmly on the table, but full buy-out may not be achievable. Over the last few years, there has been an increase in the number of alternative options available for transferring the risks associated with DB Schemes to third parties that may better suit the circumstances of some schemes, their trustees and sponsoring employers. However, these can be complicated and expensive.
In the latest in our Pensions Life Hacks series I consider alternatives to buy-in and buyout and I offer my top tips for trustees who are in the early stages of considering an alternative approach.
Have you ever asked a seemingly straightforward question, only to be met with an answer that starts with “Well, it depends…..”? This can be a touch irritating. However, it may be the first part of the answer given to trustees who ask for advice on what aspects of the Pensions Regulator’s (TPR) general code of practice apply, if the scheme has fewer than 100 members.
By way of background, trustees of schemes with at least 100 members are required to meet specific governance requirements under the 2018 Governance Regulations. This includes the requirement to carry out an Own Risk Assessment (ORA) and to have a remuneration and fee policy in place. The general code covers TPR’s expectations around how governance requirements should be met and a quick search can identify the modules applicable to schemes with at least 100 members. But how do trustees with smaller membership numbers determine whether full compliance is necessary or proportionate? Well, it depends…
Welcome to our new blog series exploring the various ingredients that go into a successful general code of practice compliance programme. We have been cooking up a range of strategies over the last couple of years and are now happy to share our recipe for success!
Background
The general code sets very high standards for pension trustees in terms of the breadth and depth of their governance arrangements. Large, complicated and ongoing schemes will be expected to address each aspect that is relevant to them – there are over 50 elements in total. Thankfully for other schemes there are grounds for trustees to formulate a proportionate approach, taking account of the specific circumstances of their scheme. But what does proportionality look like and in which circumstances might it be available to trustees?
The Original Concept
The 2018 Governance Regulations (which amended the Pensions Act 2004) required The Pensions Regulator (TPR) to develop a code of practice. The regulations set out the key elements that should be included in the code, including the effective system of governance and the own risk assessment. They also specifically provided grounds for proportionality by inserting a new provision into section 249A of the Pensions Act 2004:
“The system of governance must be proportionate to the size, nature, scale and complexity of the activities of the occupational pension scheme.”
As a contentious lawyer, I tend not to be involved in pensions issues when everything is going smoothly – my phone normally rings when trustees or employers are facing a problem of reasonable magnitude. I often wish that I had been involved at an earlier stage, at the point that the problem was (or could have been) first identified.
The long-awaited general code of practice came into force on 28 March 2024 and this provides an excellent opportunity for trustees to review their governance processes. I would encourage trustees to pay attention to the expectations of The Pensions Regulator (TPR) around the management of service providers and reconsider how they measure service standards and how they set trigger points that identify poor service. Whilst this blog focuses on pensions administration, the general messages apply to all service providers.
If trustees are receiving poor service, what should they do?
Pension scheme trustees often have long-standing relationships with the administrators who manage the day-to day scheme activity on the trustees’ behalf. It can be difficult to address unsatisfactory performance if improvements are promised by a trusted contact. Poor performance might be short term – for example due to unexpected absences of key staff. In this instance, in addition to checking the contractual documentation, trustees should increase the frequency of monitoring the service until the performance returns to satisfactory levels (for example, weekly or fortnightly catch-up calls). However, short term problems may be indicative of more serious issues (such as a high turnover of staff, under resourcing or insufficient training).
Trustees should not allow underperformance to continue – this is likely to result in member complaints and Pensions Ombudsman determinations against the scheme. Longer term problems could lead to intervention from TPR and reputational damage. In the general code of practice, TPR says that trustees should “constructively manage issues with administrator performance and consider using any contractual terms to drive improvements.”
ERISA and the Internal Revenue Code broadly prohibit transactions between employee benefit plans or Individual Retirement Accounts and certain “parties in interest” or “disqualified persons”. However, certain transactions are exempted from such prohibition. One such exemption applies to transactions involving independent qualified professional asset managers, which includes banks, savings and loan associations, insurance companies and registered investment advisers meeting certain requirements. The U.S. Department of Labor has recently amended the rules of this exemption. My blog explores the impact of the change.
The rugby Six Nations Championship has been a recent topic of conversation. But do you know how long pensions dashboards have been a topic of conversation? Almost 10 years – ever since the issue was raised in a report by the Financial Conduct Authority in December 2014! We are now about to witness kick-off as the industry prepares to connect pension schemes to the dashboards architecture.
Any day now, the Department for Work and Pensions (DWP) will issue guidance setting out a line-up of expected connection dates, split by scheme size and type. Do not be fooled by the word “guidance” – compliance is not optional. Legislation requires trustees to “have regard to” this (and other) dashboards guidance and The Pensions Regulator (TPR) has said that non-compliance with connection dates will be a breach, for which it can award penalties. We can expect to hear a lot more from TPR in the coming weeks/months, including its compliance and enforcement policy.
Changes are afoot to the statutory regime governing special administrations for regulated water companies (the SAR) following the publication of a suite of new legislation.
Impact of the changes on pension trustees
Further details of the changes are set out in a blog post by restructuring colleagues Helena Clarke and Charlotte Moller. Helena and Charlotte note that perhaps the most significant change for creditors generally, and pension trustees in particular, is the update to the insolvency waterfall to allow for priority payment of government funds. In a nutshell, this means that any funds provided by the Secretary of State to the special administrator by way of loan or grant will be paid out in priority to any s75 debt that may be owed to pension trustees. Given the potential size of such government grants, this could have a sizeable impact on recoveries for pension schemes and all unsecured creditors. Read more here.
This blog post addresses retirement plans that are intended to be tax-qualified under Section 401(a) of the Internal Revenue Code (Code).
Specifically, this post will provide information related to:
“Coverage Testing” rules under Code Section 410(b)
Related “Controlled Group” rules under Code Section 414
Quite often, we see employers, particularly smaller employers, design and implement tax-qualified retirement plans without a basic understanding of how these rules apply to their plans. This results in confusion over if the plan is required to take corrective action under these rules in a particular plan year.
