The funding difficulties facing defined benefit schemes in this country at the moment as well as the strengthening of the Pensions Act funding requirements and re-introduction of funding standard deadlines has seen both scheme sponsors and trustees adopt an increasingly more creative approach to satisfying statutory obligations as well as providing a sustainable basis for funding. This might include putting in place security in favour of the trustees of the scheme, swapping equity for a scheme deficit (see, for example, the deal struck by UK company, Uniq with the trustees of its pension scheme in 2011 and the recent arrangement proposed by Independent News and Media Group to the trustees of its scheme where the scheme appears to have been offered a 5% equity stake in the IN&M Group as part of a broader deal around restructuring), revising the funding obligation or providing an unsecured parent company guarantee.
Compared to the UK, Irish schemes are relatively slow to put in place contingent assets as a substitute for cash or a funding obligation. However, recently we have seen this strategy used effectively to allow trustees to get a real interest in a sponsoring employer’s only real asset where that employer is illiquid but not insolvent. We have also seen it suggested as a cost-effective means of allowing schemes to satisfy the funding standard and funding standard reserve.
A key question for both employers and trustees is whether the proposed contingent asset falls foul of the self-investment and/or concentration of investment criteria under the Occupational Pension Schemes (Funding Standard and Funding Standard Reserve) Regulations 1993 to 2013 (as amended). This is a question which needs to be considered on a case-by-case and asset-by-asset basis. It is also something that should be kept under constant review for the entire period over which the contingent asset is in place.
The legislation on this area of the law could be clearer but it is becoming increasingly more common that schemes and sponsoring employers use contingent assets in more and more creative ways so that they can be considered in determining the satisfaction by the scheme of its statutory funding obligations. In the UK, for example, Scottish limited partnerships set up as a joint venture between the scheme and the employer have been effectively used to avoid statutory restrictions and, while the Irish legislation may be more stringent and this solution is unlikely to suit all schemes/employers, it is likely that a similar structure could be considered in this jurisdiction.
Issues for employers
This is a tricky area of the law to get right but can be a very effective means of managing a defined benefit liability while maintaining liquidity. In our experience, there are a number of considerations employers need to be aware of in approaching the trustees and in maximising the benefits to be gained from the proposal.
Assets charged in favour of the trustees which are owned by the sponsoring employer or a related employer are of limited use in determining whether a scheme satisfies the funding standard due to the self-investment and concentration of investment rules under the Funding Standard Regulations.
- Self-investment rules provide that assets that are used in the business of, and owned by, the sponsoring or a related employer cannot be considered at all by the actuary in preparing an actuarial funding certificate. However, such assets can be taken into account by the actuary in determining whether a scheme satisfies the funding standard reserve.
- Concentration of investment rules provide that the percentage of scheme investments in a particular asset class or a particular company (for example the sponsoring employer and related companies) as a percentage of overall scheme assets that can be taken into account for funding standard purposes will be limited to 10% of the total resources of the scheme.
- It is also worth noting that the Occupational Pension Schemes (Investment) Regulations 2006 to 2010 prohibit investment in the principal employer of more than 5% of total scheme resources and investment in the principal employer and related and associated companies of, in aggregate 10% of total scheme resources.
Unsecured guarantees (for example, given by the sponsoring employer or by a parent company) are similarly not allowed to be considered by the actuary for funding standard purposes other than where the guarantor has a credit rating of at least A as determined by Standard & Poor’s Rating Services or a comparable rating from an internationally recognised rating agency for its long-term and non-credit enhanced debt obligations.
Issues for trustees
“It is the view of The Pensions Board that a deficit within a scheme is best dealt with by paying additional contributions and this should be the first objective of trustees.”
Trustees must only accept contingent assets/unsecured undertakings in lieu of additional contributions where the scheme employers are unwilling to pay additional contributions. Trustees, as always, need to bear in mind their fiduciary obligations to act in the best interests of scheme beneficiaries in accepting a contingent asset.
In most cases, the giving of security to a scheme will be in return for the trustees giving something to the scheme employer in return (for example, agreeing to benefit cuts or the reduction of a contribution obligation). Whether this is in beneficiaries’ best interests is always going to be a balancing act but, if the security complies with the Pensions Board guidance it will be a valuable scheme resource and one which the trustees can reasonably agree to accept in beneficiaries’ best interests.
The value in putting in place some sort of contingent asset is in the added security it gives to the trustees where the employer fails to fund the scheme or looks to wind the scheme up. In other words, there is a real practical benefit for trustees particularly if the contingent asset takes the form of a fixed charge which, should there be an employer insolvency, may turn out to be preferable to a promise of cash contributions. However, depending on the type of asset and its ownership structure, its usefulness in satisfying statutory obligations may be limited.