Pensions Act 2004

Commentary on Sections

Part 1 – the Pensions Regulator

Exercise of regulatory functions

Section 99: Compulsory review

303.This section applies to a determination made under the special procedure. Subsections (1) and (2) provide that the Regulator must review its determination to take regulatory action as soon as reasonably practicable. Subsection (3) provides that as part of the review the Regulator may confirm, change or revoke a determination, direction, notice or order made; may substitute a different determination, direction, notice or order and can deal with matters arising on the review in the same way as if the matters had arisen on the original determination and make savings and transitional provision.

304.Subsection (4) provides that when the Regulator has completed the review of the determination, a “final notice” (the outcome of the review) must be sent to all the persons who appear to be directly affected by it.

305.Subsection (5) provides that if the final notice gives a determination to exercise a different regulatory function than that set out in the original determination, then before the final notice is given, all the persons that appear to the Regulator to be directly affected by the new proposed action must have the opportunity to make representations in relation to the proposed action. The Regulator must consider these representations before making its determination. However, subsection (6) provides that this right to make representations on a determination (to exercise a different regulatory function) does not apply if the function is a function listed in section 97(5) and the Regulator decides to take such regulatory action immediately on the grounds it is necessary, because there is an immediate risk, or the Regulator considers there is likely to be a risk if the function is not exercised, to the scheme assets or the interests of members.

306.Subsection (7) provides that the determination contained in the final notice may be referred to the Pensions Regulator Tribunal by any person who has been given a final notice and any other person who appears to the Tribunal to be directly affected by the determination.

307.Subsection (8) provides that where that determination is to exercise a different regulatory function different to the function in the determination notice, the Regulator cannot exercise the function in the period during which a reference can be made to the Tribunal and until the reference and any appeal is disposed of. Subsection (9) provides that subsection (8) will not apply if the regulatory function is a function listed in section 96(6) or 97(5) which may be exercised immediately by the Regulator and it is determined to exercise the function immediately because there is a risk to the interests of members or the scheme’s assets. Subsection (10) provides that the Regulator’s functions are exercisable on its behalf by the Determinations Panel. Subsection (11) provides that the panel must decide the procedure it will follow in exercising those functions. Subsection (12) provides that section 94 (publication of Regulator’s procedure) applies in relation to the procedure determined under subsection (11).