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The Minister for Social Protection, Leo Varadkar, has this week published the General Scheme of the Social Welfare and Pensions Bill 2017. The General Scheme is an initial draft of a bill which is then subject to pre-legislative scrutiny before being finalised. While in the normal course it could take some months for a General Scheme to be reviewed and scrutinized, the Minister has indicated that he intends for the final bill to be enacted before the Dáil breaks for Summer Recess (normally towards the end of July).

Key points:

  • Sponsoring employers to be required to give 12 months’ notice before ceasing contributions to defined benefit pension schemes and to continue paying contributions to the scheme during that period;
  • Employers of schemes which do not satisfy the minimum funding standard / funding standard reserve, to be required to enter into funding negotiations with the trustees;
  • Proposed power for the Pensions Authority to impose contribution obligation on sponsoring employers; and
  • Extension of spouse’s pensions to civil partners and same-sex spouses in certain circumstances.


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We have previously commented on legislation introduced as part of the process to amalgamate the offices of the Financial Services Ombudsman and the Pensions Ombudsman (see post of 27 May 2016 below). The decision to amalgamate the offices was made by the Government in 2013 following a recommendation from the OECD. Two draft bills (The

The Pensions Authority has recently published a consultation document that proposes several reforms in relation to private pension schemes in Ireland. The stated aim of the Authority is to ensure that pension schemes are fit for purpose which, in the Authority’s view, means the schemes should be “well managed, cost efficient and understandable to their members”. As part of the consultation process the Authority will be hosting a question and answer session next Thursday, the 15th of September at which interested parties can ask questions and share their views regarding the proposed reforms. Note: bookings for the Forum must be submitted to the Authority before close of business on Friday 9th of September.

As at 1 June 2016, there were 167,987 funded pension schemes in Ireland. Not surprisingly, therefore, one of the stated drivers for the Authority’s proposals is to reduce the number of pension schemes which the Authority has to supervise. The other drivers include low public confidence in pensions and an expectation of more rigorous regulation and supervision. The Authority wishes to move to more active oversight of pension schemes as opposed to pursuing breaches after the fact. The two main external drivers of reform are noted as the IORP II Directive which will need to be implemented by 2018 and the OECD’s Report on the Irish pension system published in 2013.

A brief summary of the proposals being put forward by the Authority is set out below. Submissions have been invited by the Authority in relation to the proposals in the period up to 3rd October 2016. Further information together with information regarding the Consultation Forum is available from the Pension Authority’s website.


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As part of its remit, the Pensions Authority is responsible for the monitoring and supervision of, and the issuing of guidelines or guidance notes on, the operation of the Pensions Act. One of the key objectives of the Pensions Authority for 2016 and the coming years is to provide further guidance for trustees of occupational pension schemes.

At a Pensions Authority Seminar in January, the first tranche of the Authority’s Codes of Governance for Defined Contribution Schemes were launched with the second tranche released this week. There are currently six codes available here covering the following topics:

  1. Governance plan of action;
  2. Trustee meetings;
  3. Managing conflicts of interest;
  4. Collection and remittance of contributions;
  5. Investing scheme assets; and
  6. Paying benefits.


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The position relating to pensions on bankruptcy has not always been entirely clear. Currently, in order for a pension scheme to qualify for Revenue approval, a pension under the scheme cannot be assigned or surrendered, save in certain limited circumstances. As a result, pension schemes often contain wording prohibiting assignment or surrender and, in certain cases, providing for the forfeiture of the benefit on a member’s bankruptcy. This in turn raised the question of whether or not a pension (not yet in payment) was capable of vesting in the Official Assignee in bankruptcy as part of the debtor’s property.

Part 4 of the Personal Insolvency Act 2012 which was commenced at the end of last year has introduced two new provisions into the Bankruptcy Act 1988 specifically relating to pensions on bankruptcy. Section 44A of the Bankruptcy Act now provides that assets under a relevant pension arrangement (other than payments already received or which the bankrupt was entitled to receive) shall not vest in the Official Assignee. A relevant pension arrangement is defined in the section and includes a retirement benefits scheme, retirement annuity contract, PRSA, overseas pension plan etc.


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The Office of the Pensions Ombudsman was first established in 2003 under the Pensions (Amendment) Act, 2002. According to the Ombudsman’s most recent annual report, over the past 10 years the Office has received approximately 10,000 queries and opened over 5,000 detailed complaint files. In 2012 alone, 601 new complaint files were opened representing an increase of 24% on the files opened in 2011.

Under the Pensions Act, 1990, any party who disagrees or disputes the Ombudsman’s determination of the investigation is entitled to bring an appeal to the High Court within 21 days of the determination. In line with the increase in the number of complaints being made to the Ombudsman, we are also seeing an increase in the number of appeals being brought to the High Court against his determinations. Most recently the trustees of the Irish Blood Transfusion Service Superannuation Fund appealed a determination of the Ombudsman in the case of Willis & Ors v Pensions Ombudsman and anor.

In that case, the President of the High Court, Mr Justice Kearns, made the following points:


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Overview

The recent UK Supreme Court judgment in Re Nortel GMBH (in administration) and others; Re Lehman Brothers International (Europe) (in administration) and others [2013] UKSC 52 (the Nortel Appeal) overturned the decisions of the High Court and the Court of Appeal, which previously gave “super-priority” to liabilities under financial support directions and contribution notices issued by the Pension Regulator (PR) against companies following their insolvency.

Background

Pursuant to the UK Pensions Act 2004 (the Act), the PR is given a number of “moral hazard” powers which allows it to impose liabilities upon connected and associated companies who are not necessarily pension scheme employers (“target companies”).

The most relevant of these powers are:

(a) Financial Support Directions (FSDs); and

(b) Contribution Notices (CNs).


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