UK Offence Report

Money purchase schemes: fraud and levy deficiencies etc.

regulation 10(3)(b) of The Occupational Pension Schemes (Employer Debt) Regulations (Northern Ireland) 2005

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

b the reduction is attributable to an act or omission which –

i constitutes an offence prescribed for the purposes of Article 79(1)(c) (cases where compensation provisions apply), or

ii in the case of an act or omission which occurred outside Northern Ireland, would constitute such an offence if it occurred in Northern Ireland, and

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
breaching the provision
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 10(3)(b)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. On these words an offence is committed where a person occurred in Northern Ireland,.
  2. Doing what the provision prohibits, or failing to do what it requires under the Occupational Pension Schemes (Employer Debt) Regulations (Northern Ireland) 2005.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
25 March 2005
In force from
6 April 2005
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations.) — the explanatory note published with the instrument, © Crown copyright.

These Regulations are made as a consequence of provisions in the Pensions (Northern Ireland) Order 2005 (“the 2005 Order”) and replace the Occupational Pension Schemes (Deficiency on Winding Up, etc.) Regulations (Northern Ireland) 1996 (“the Deficiency on Winding Up Regulations”) where debts arise under Article 75 of the Pensions (Northern Ireland) Order 1995 (“the 1995 Order”) in respect of certain occupational pension schemes which begin to wind up after 6th April 2005. Regulation 1 provides that these Regulations come into operation on 6th April 2005, but do not apply in the case of schemes that have begun to wind up before that date or, unless the scheme is a money purchase scheme, if a debt arose under Article 75 of the 1995 Order before that date. Regulation 2 provides for interpretation and identifies the Actuarial Guidance Notes GN 19 and GN 27 that will be used in connection with the calculation of any debt. Regulation 3 provides that the Deficiency on Winding Up Regulations do not apply in any case where these Regulations apply. Regulation 4 makes provision about the schemes that are excluded from Article 75 of the 1995 Order and hence from these Regulations. They largely correspond with the schemes that are excluded from being eligible schemes for the purposes of Part III of the 2005 Order. Regulation 5 makes provision about how the assets and liabilities of schemes are to be valued for the purposes of Article 75 of the 1995 Order. It provides for all liabilities in respect of pensions or other benefits to be valued on the basis that the trustees or managers will provide for them by buying annuities, but, apart from that, for similar principles to apply as apply for the purpose of minimum funding valuations and for the valuation certificate set out in Schedule 1 to be used. The costs of winding up the scheme are to be included amongst its liabilities. Regulations 6 to 8 deal with how Article 75 of the 1995 Order and these Regulations apply to multi-employer schemes. Regulation 6 provides that a debt only arises under Article 75(2) of the 1995 Order while a multi-employer scheme is being wound up if a deficit in the scheme assets occurs before a relevant event has occurred in relation to all the employers, and all the employers are then responsible for a share of the debt. But whether a debt arises under Article 75(4) of the 1995 Order is judged by reference to each of the employers separately and debts under that Article are also taken to arise as respects an employer if he ceases to have any employees in pensionable service to which the scheme applies. The debt on each employer under Article 75(4) of the 1995 Order is his share of the deficit in the assets. Regulation 7 modifies the rules in regulation 5 where a debt arises because of an employer in a multi-employer scheme ceasing to have any employees in pensionable service. The provisions about buying annuities and including winding up costs are disapplied. Regulation 8 provides that Article 75 of the 1995 Order and these Regulations apply as if sections of multi-employer schemes were separate schemes. Regulation 9 ensures that in the case of a scheme which has no active members Article 75 of the 1995 Order and these Regulations apply as if anyone who was an employer immediately before the scheme ceased to have any active members is treated as an employer and so may be liable for a debt. Regulations 10 to 13 deal with how Article 75 of the 1995 Order and these Regulations apply to money purchase schemes. Regulation 10 modifies Article 75 of the 1995 Order so that it only applies to money purchase schemes in two cases, which differ from those where it applies for defined benefit schemes. The first is where general levy has not been paid and the second is where there has been a reduction in the scheme’s assets because of a crime. Regulation 11 provides special valuation rules for these cases. Regulation 12 modifies how regulation 10 applies where the money purchase scheme is a multi-employer scheme, apportioning the deficit among the employers in a similar way to regulation 6. Regulation 13 makes similar provision to regulation 9 for former employers in relation to money purchase schemes. Regulation 14 provides that sectionalised schemes covering United Kingdom and foreign employment are to be treated as separate schemes. Regulation 15 provides that where a scheme is partly the subject of a government guarantee, the part that is so subject and the other part are treated as separate schemes. Regulation 16 enables trustees to modify schemes by resolution for the purpose of apportioning debts under Article 75 of the 1995 Order amongst employers in different proportions from those that would otherwise apply. Regulation 17 prescribes the circumstances in which the staying of the voluntary winding up of an employer is disregarded for the purposes of Article 75 of the 1995 Order. Stays for a limited period are prescribed so that the resolution for the winding up and any debt which arose under that section by virtue of the passing of the resolution are not affected by the temporary staying of the winding up. Regulation 18 introduces Schedule 2 which contains amendments of the Occupational Pension Schemes (Minimum Funding Requirement and Actuarial Valuations) Regulations (Northern Ireland) 1996, the Occupational Pension Schemes (Investment) Regulations (Northern Ireland) 1996 and the Occupational Pension Schemes (Winding Up) Regulations (Northern Ireland) 1996 that are consequential on the changes made to Article 75 of the 1995 Order by the 2005 Order. As these Regulations make, in so far as they are made under Part II of the 1995 Order, in relation to Northern Ireland only provision corresponding to provision contained in regulations made by the Secretary of State for Work and Pensions in relation to Great Britain, the requirement for consultation under Article 117(1) of the 1995 Order does not apply by virtue of paragraph (2)(e) of that Article. Articles 75, 75A and 87(2) of the 1995 Order, some of the enabling provisions under which these Regulations are made, are amended by Articles 248 and 249 of, and paragraph 60(b) of Schedule 10 to, the 2005 Order. The Pensions (2005 Order) (Commencement No. 1 and Consequential and Transitional Provisions) Order (Northern Ireland) 2005 (S.R. 2005 No. 48 (C. 5)) provides for the coming into operation of Article 248 of the 2005 Order, for the purpose of authorising the making of regulations, on 25th February 2005 and for all other purposes, on 6th April 2005. The Pensions (2005 Order) (Commencement No. 2 and Transitional Provisions) Order (Northern Ireland) 2005 (S.R. 2005 No. 166 (C. 12)) provides for the coming into operation of – Article 249 of the Order on 25th March 2005; paragraph 60(b) of Schedule 10 to the 2005 Order, for the purpose of authorising the making of regulations, on 25th March 2005 and fully on 6th April 2005.

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.75.

Basis
the provision says the conduct “constitutes an offence”
Confidence
0.75 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source