Pensions Act 1995

Modification of schemes

67 Restriction on powers to alter schemes

(1) This section applies to any power conferred on any person by an occupational pension scheme (other than a public service pension scheme) to modify the scheme.

(2) The power cannot be exercised on any occasion in a manner which would or might affect any entitlement, or accrued right, of any member of the scheme acquired before the power is exercised unless the requirements under subsection (3) are satisfied.

(3) Those requirements are that, in respect of the exercise of the power in that manner on that occasion—

(a) the trustees have satisfied themselves that—

(i) the certification requirements, or

(ii) the requirements for consent,

are met in respect of that member, and

(b) where the power is exercised by a person other than the trustees, the trustees have approved the exercise of the power in that manner on that occasion.

(4) In subsection (3)—

(a) “the certification requirements” means prescribed requirements for the purpose of securing that no power to which this section applies is exercised in any manner which, in the opinion of an actuary, would adversely affect any member of the scheme (without his consent) in respect of his entitlement, or accrued rights, acquired before the power is exercised, and

(b) “the consent requirements” means prescribed requirements for the purpose of obtaining the consent of members of a scheme to the exercise of a power to which this section applies.

(5) Subsection (2) does not apply to the exercise of a power in a prescribed manner.

(6) Where a power to which this section applies may not (apart from this section) be exercised without the consent of any person, regulations may make provision for treating such consent as given in prescribed circumstances.

68 Power of trustees to modify schemes by resolution

(1) The trustees of a trust scheme may by resolution modify the scheme with a view to achieving any of the purposes specified in subsection (2).

(2) The purposes referred to in subsection (1) are—

(a) to extend the class of persons who may receive benefits under the scheme in respect of the death of a member of the scheme,

(b) to enable the scheme to conform with such arrangements as are required by section 16(1) or 17(2),

(c) to enable the scheme to comply with such terms and conditions as may be imposed by the Compensation Board in relation to any payment made by them under section 83 or 84,

(d) to enable the scheme to conform with section 37(2), 76(2), 91 or 92, and

(e) prescribed purposes.

(3) No modification may be made by virtue of subsection (2)(a) without the consent of the employer.

(4) Modifications made by virtue of subsection (2)(b) may include in particular—

(a) modification of any limit on the number of, or of any category of, trustees, or

(b) provision for the transfer or vesting of property.

(5) Nothing done by virtue of subsection (2)(d), or any corresponding provisions in force in Northern Ireland, shall be treated as effecting an alteration to the scheme in question for the purposes of section 591B (cessation of approval) of the Taxes Act 1988.

(6) Regulations may provide that this section does not apply to trust schemes falling within a prescribed class or description.

69 Grounds for applying for modifications

(1) The Authority may, on an application made to them by persons competent to do so, make an order in respect of an occupational pension scheme (other than a public service pension scheme)—

(a) authorising the modification of the scheme with a view to achieving any of the purposes mentioned in subsection (3), or

(b) modifying the scheme with a view to achieving any such purpose.

(2) Regulations may make provision about the manner of dealing with applications under this section.

(3) The purposes referred to in subsection (1) are—

(a) in the case of a scheme to which Schedule 22 to the Taxes Act 1988 (reduction of pension fund surpluses in certain exempt approved schemes) applies, to reduce or eliminate on any particular occasion any excess in accordance with any proposal submitted under paragraph 3(1) of that Schedule, where any requirements mentioned in section 37(4), and any other prescribed requirements, will be satisfied in relation to the reduction or elimination,

(b) in the case of an exempt approved scheme (within the meaning given by section 592(1) of the Taxes Act 1988) which is being wound up, to enable assets remaining after the liabilities of the scheme have been fully discharged to be distributed to the employer, where prescribed requirements in relation to the distribution are satisfied, or

(c) to enable the scheme to be so treated during a prescribed period that an employment to which the scheme applies may be contracted-out employment by reference to it.

(4) The persons competent to make an application under this section are—

(a) in the case of the purposes referred to in paragraph (a) or (b) of subsection (3), the trustees of the scheme, and

(b) in the case of the purposes referred to in paragraph (c) of that subsection—

(i) the trustees or managers of the scheme,

(ii) the employer, or

(iii) any person other than the trustees or managers who has power to alter the rules of the scheme.

(5) An order under subsection (1)(a) must be framed—

(a) if made with a view to achieving either of the purposes referred to in subsection (3)(a) or (b), so as to confer the power of modification on the trustees, and

(b) if made with a view to achieving the purposes referred to in subsection (3)(c), so as to confer the power of modification on such persons (who may include persons who were not parties to the application made to the Authority) as the Authority think appropriate.

(6) Regulations may provide that in prescribed circumstances this section does not apply to occupational pension schemes falling within a prescribed class or description or applies to them with prescribed modifications.

70 Section 69: supplementary

(1) The Authority may not make an order under section 69 unless they are satisfied that the purposes for which the application for the order was made—

(a) cannot be achieved otherwise than by means of such an order, or

(b) can only be achieved in accordance with a procedure which—

(i) is liable to be unduly complex or protracted, or

(ii) involves the obtaining of consents which cannot be obtained, or can only be obtained with undue delay or difficulty.

(2) The extent of the Authority’s powers to make such an order is not limited, in relation to any purposes for which they are exercisable, to the minimum necessary to achieve those purposes.

(3) The Authority may not make an order under section 69 with a view to achieving the purpose referred to in subsection (3)(c) of that section unless they are satisfied that it is reasonable in all the circumstances to make it.

71 Effect of orders under section 69

(1) An order under paragraph (a) of subsection (1) of section 69 may enable those exercising any power conferred by the order to exercise it retrospectively (whether or not the power could otherwise be so exercised) and an order under paragraph (b) of that subsection may modify a scheme retrospectively.

(2) Any modification of a scheme made in pursuance of an order of the Authority under section 69 is as effective in law as if it had been made under powers conferred by or under the scheme.

(3) An order under section 69 may be made and complied with in relation to a scheme—

(a) in spite of any enactment or rule of law, or any rule of the scheme, which would otherwise operate to prevent the modification being made, or

(b) without regard to any such enactment, rule of law or rule of the scheme as would otherwise require, or might otherwise be taken to require, the implementation of any procedure or the obtaining of any consent, with a view to the making of the modification.

(4) In this section, “retrospectively” means with effect from a date before that on which the power is exercised or, as the case may be, the order is made.

72 Modification of public service pension schemes

(1) The appropriate authority may make such provision for the modification of a public service pension scheme as could be made in respect of a scheme other than a public service pension scheme by an order of the Authority under section 69(1)(b).

(2) In this section “the appropriate authority”, in relation to a scheme, means such Minister of the Crown or government department as may be designated by the Treasury as having responsibility for the particular scheme.

(3) The powers of the appropriate authority under this section are exercisable by means of an order—

(a) directly modifying the scheme (without regard, in the case of a scheme contained in or made under powers conferred by an enactment, to the terms of the enactment or any of its restrictions), or

(b) modifying an enactment under which the scheme was made or by virtue of which it has effect.

(4) Any such order may adapt, amend or repeal any such enactment as is referred to in paragraph (a) or (b) of subsection (3) as that authority thinks appropriate.