Welfare Reform and Pensions Act 1999

Section 35.

SCHEDULE 5E+W+S Pension credits: mode of discharge

Funded pension schemesE+W+S

1(1)This paragraph applies to a pension credit which derives from—E+W+S

(a)a funded occupational pension scheme, or

(b)a personal pension scheme.

(2)The trustees or managers of the scheme from which a pension credit to which this paragraph applies derives may discharge their liability in respect of the credit by conferring appropriate rights under that scheme on the person entitled to the credit—

(a)with his consent, or

(b)in accordance with regulations made by the Secretary of State.

(3)The trustees or managers of the scheme from which a pension credit to which this paragraph applies derives may discharge their liability in respect of the credit by paying the amount of the credit to the person responsible for a qualifying arrangement with a view to acquiring rights under that arrangement for the person entitled to the credit if—

(a)the qualifying arrangement is not disqualified as a destination for the credit,

(b)the person responsible for that arrangement is able and willing to accept payment in respect of the credit, and

(c)payment is made with the consent of the person entitled to the credit, or in accordance with regulations made by the Secretary of State.

(4)For the purposes of sub-paragraph (2), no account is to be taken of consent of the person entitled to the pension credit unless—

(a)it is given after receipt of notice in writing of an offer to discharge liability in respect of the credit by making a payment under sub-paragraph (3), or

(b)it is not withdrawn within 7 days of receipt of such notice.

Unfunded public service pension schemesE+W+S

2(1)This paragraph applies to a pension credit which derives from an occupational pension scheme which is—E+W+S

(a)not funded, and

(b)a public service pension scheme.

(2)The trustees or managers of the scheme from which a pension credit to which this paragraph applies derives may discharge their liability in respect of the credit by conferring appropriate rights under that scheme on the person entitled to the credit.

(3)If such a scheme as is mentioned in sub-paragraph (1) is closed to new members, the appropriate authority in relation to that scheme may by regulations specify another public service pension scheme as an alternative to it for the purposes of this paragraph.

(4)Where the trustees or managers of a scheme in relation to which an alternative is specified under sub-paragraph (3) are subject to liability in respect of a pension credit, they may—

(a)discharge their liability in respect of the credit by securing that appropriate rights are conferred on the person entitled to the credit by the trustees or managers of the alternative scheme, and

(b)for the purpose of so discharging their liability, require the trustees or managers of the alternative scheme to take such steps as may be required.

(5)In sub-paragraph (3), “the appropriate authority”, in relation to a public service pension scheme, means such Minister of the Crown or government department as may be designated by the Treasury as having responsibility for the scheme.

Other unfunded occupational pension schemesE+W+S

3(1)This paragraph applies to a pension credit which derives from an occupational pension scheme which is—E+W+S

(a)not funded, and

(b)not a public service pension scheme.

(2)The trustees or managers of the scheme from which a pension credit to which this paragraph applies derives may discharge their liability in respect of the credit by conferring appropriate rights under that scheme on the person entitled to the credit.

(3)The trustees or managers of the scheme from which a pension credit to which this paragraph applies derives may discharge their liability in respect of the credit by paying the amount of the credit to the person responsible for a qualifying arrangement with a view to acquiring rights under that arrangement for the person entitled to the credit if—

(a)the qualifying arrangement is not disqualified as a destination for the credit,

(b)the person responsible for that arrangement is able and willing to accept payment in respect of the credit, and

(c)payment is made with the consent of the person entitled to the credit, or in accordance with regulations made by the Secretary of State.

Other pension arrangementsE+W+S

4(1)This paragraph applies to a pension credit which derives from—E+W+S

(a)a retirement annuity contract,

(b)an annuity or insurance policy purchased or transferred for the purpose of giving effect to rights under an occupational pension scheme or a personal pension scheme, or

(c)an annuity purchased, or entered into, for the purpose of discharging liability in respect of a pension credit.

(2)The person responsible for the pension arrangement from which a pension credit to which this paragraph applies derives may discharge his liability in respect of the credit by paying the amount of the credit to the person responsible for a qualifying arrangement with a view to acquiring rights under that arrangement for the person entitled to the credit if—

(a)the qualifying arrangement is not disqualified as a destination for the credit,

(b)the person responsible for that arrangement is able and willing to accept payment in respect of the credit, and

(c)payment is made with the consent of the person entitled to the credit, or in accordance with regulations made by the Secretary of State.

(3)The person responsible for the pension arrangement from which a pension credit to which this paragraph applies derives may discharge his liability in respect of the credit by entering into an annuity contract with the person entitled to the credit if the contract is not disqualified as a destination for the credit.

(4)The person responsible for the pension arrangement from which a pension credit to which this paragraph applies derives may, in such circumstances as the Secretary of State may prescribe by regulations, discharge his liability in respect of the credit by assuming an obligation to provide an annuity for the person entitled to the credit.

(5)In sub-paragraph (1)(c), “pension credit” includes a credit under Northern Ireland legislation corresponding to section 29(1)(b).

Appropriate rightsE+W+S

5E+W+SFor the purposes of this Schedule, rights conferred on the person entitled to a pension credit are appropriate if—

(a)they are conferred with effect from, and including, the day on which the order, or provision, under which the credit arises takes effect, and

(b)their value, when calculated in accordance with regulations made by the Secretary of State, equals the amount of the credit.

Qualifying arrangementsE+W+S

6(1)The following are qualifying arrangements for the purposes of this Schedule—E+W+S

(a)an occupational pension scheme,

(b)a personal pension scheme,

(c)an appropriate annuity contract,

(d)an appropriate policy of insurance, and

(e)an overseas arrangement within the meaning of the M1Contracting-out (Transfer and Transfer Payment) Regulations 1996.

(2)An annuity contract or policy of insurance is appropriate for the purposes of sub-paragraph (1) if, at the time it is entered into or taken out, the [F1insurer] with which it is entered into or taken out—

(a)is carrying on F2... long-term insurance business in the United Kingdom F3..., and

(b)satisfies such requirements as the Secretary of State may prescribe by regulations.

[F4(3)“Insurer” and “long-term insurance business” have the meaning given in section 180A of the Pension Schemes Act 1993.]

Disqualification as destination for pension creditE+W+S

7(1)If a pension credit derives from a pension arrangement which is [F5a registered pension scheme under section 153 of the Finance Act 2004,] an arrangement is disqualified as a destination for the credit unless—E+W+S

(a)it is also [F6registered] for those purposes, or

(b)it satisfies such requirements as the Secretary of State may prescribe by regulations.

F7(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)An occupational pension scheme is disqualified as a destination for a pension credit unless the rights to be acquired under the arrangement by the person entitled to the credit are rights whose value, when calculated in accordance with regulations made by the Secretary of State, equals the credit.

(4)An annuity contract or insurance policy is disqualified as a destination for a pension credit in such circumstances as the Secretary of State may prescribe by regulations.

(5)The requirements which may be prescribed under sub-paragraph (1)(b) include, in particular, requirements of the Inland Revenue.

F7(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Adjustments to amount of pension creditE+W+S

8(1)If—E+W+S

(a)a pension credit derives from an occupational pension scheme,

(b)the scheme is one to which [F8Part 3 of the Pensions Act 2004 (scheme funding)] applies,

(c)the scheme is underfunded on the valuation day, and

(d)such circumstances as the Secretary of State may prescribe by regulations apply,

paragraph 1(3) shall have effect in relation to the credit as if the reference to the amount of the credit were to such lesser amount as may be determined in accordance with regulations made by the Secretary of State.

(2)Whether a scheme is underfunded for the purposes of sub-paragraph (1)(c) shall be determined in accordance with regulations made by the Secretary of State.

(3)For the purposes of that provision, the valuation day is the day by reference to which the cash equivalent on which the amount of the pension credit depends falls to be calculated.

9E+W+SIf—

(a)a person’s shareable rights under a pension arrangement have become subject to a pension debit, and

(b)the person responsible for the arrangement makes a payment which is referable to those rights without knowing of the pension debit,

this Schedule shall have effect as if the amount of the corresponding pension credit were such lesser amount as may be determined in accordance with regulations made by the Secretary of State.

10E+W+SThe Secretary of State may by regulations make provision for paragraph 1(3), 3(3) or 4(2) to have effect, where payment is made after the end of the implementation period for the pension credit, as if the reference to the amount of the credit were to such larger amount as may be determined in accordance with the regulations.

GeneralE+W+S

11E+W+SLiability in respect of a pension credit shall be treated as discharged if the effect of paragraph 8(1) or 9 is to reduce it to zero.

12E+W+SLiability in respect of a pension credit may not be discharged otherwise than in accordance with this Schedule.

13E+W+SRegulations under paragraph 5(b) or 7(3) may provide for calculation of the value of rights in accordance with guidance from time to time prepared by a person specified in the regulations.

[F913AE+W+SThe provisions of this Schedule are subject to—

(a)section 73A(3) and (6) of the Pensions Act 1995 (prohibition on new members during winding up of scheme: exception for discharge of pension credit derived from the scheme), and

(b)section 133(2) and (8) of the Pensions Act 2004 (prohibition on new members during an assessment period in relation to a scheme: exception for discharge of pension credit derived from the scheme).]

14E+W+SIn this Schedule—

• “funded”, in relation to an occupational pension scheme, means that the scheme meets its liabilities out of a fund accumulated for the purpose during the life of the scheme;

• “public service pension scheme” has the same meaning as in the M2Pension Schemes Act 1993.