The Occupational Pensions Regulatory Authority (Determinations and Review Procedure) Regulations 1997

• Citation: S.I. 1997/794
• Sections: 21

Section 1 Citation, commencement, interpretation and extent

(1) These Regulations may be cited as the Occupational Pensions Regulatory Authority (Determinations and Review Procedure) Regulations 1997 and shall come into force on 6th April 1997.

(2) In these Regulations—

“the 1995 Act" means the Pensions Act 1995;

“the Authority" means the Occupational Pensions Regulatory Authority established by section 1 of the 1995 Act;

“review" means a review of a determination made by the Authority.

(3) In these Regulations, a reference—

(a) to a numbered regulation is to the regulation in these Regulations bearing that number;

(b) in a regulation to a numbered paragraph is to the paragraph in that regulation bearing that number.

(4) Except for regulations 3(2) and 21, these Regulations shall apply to Northern Ireland.

Section 2 Notification of determination and right to apply for a review

Where the Authority make a determination, they shall send to such persons as appear to them to be directly affected a notice in writing which contains the determination, the reasons for that determination and which specifies the right to apply for a review of that determination and the time limit for making such an application.

Section 3 Application to the Authority for a review

(1) An application to the Authority for the review of a determination shall be made in writing, signed by the applicant and shall state—

(a) the name and address of the applicant;

(b) the particulars of the determination in respect of which a review is sought;

(c) the grounds on which a review of the determination is sought;

(d) the name and address of the applicant’s representative (if any) and whether the Authority should send replies or notices concerning the application to that representative rather than to the applicant.

(2) For the purposes of section 96(2) of the 1995 Act (decisions the Authority must review on application being made within prescribed period), the prescribed period is 28 days beginning with the date of the notice referred to in regulation 2.

(3) The applicant shall send with any application, or within 14 days thereafter, a copy of the documents on which he intends to rely for the purposes of the review.

(4) The Authority may, in any particular case, extend the time limit prescribed in paragraph (2), or in any corresponding provision in force in Northern Ireland, whether or not it has already expired.

(5) Where an application will, or is likely to be, received outside the time limit prescribed in paragraph (2), or in any corresponding provision in force in Northern Ireland, the applicant shall include with the application for a review a statement of the reasons on which he relies to justify the delay, and the Authority must consider any such statement in deciding whether or not to extend the time limit.

(6) Notwithstanding paragraph (1), the Authority may allow an application for a review to be treated as properly made even if the requirements of paragraph (1) are not met.

(7) The applicant may, at any time before he is notified of the date of the review, or, with the leave of the Authority, at any time after he is so notified, amend the grounds referred to in paragraph (1)(c) and submit any documents upon which he wishes to rely in support of those grounds as amended.

Section 4 Notification of decision to review or not to review

(1) Subject to paragraph (4), where the Authority receive an application for a review, they shall decide whether to review the determination in question.

(2) Where the Authority decide to review a determination, whether or not pursuant to an application for a review, they shall, within 28 days of making the decision, send to the applicant, if any, and to such other persons as they consider the justice of the case may require, a notice in writing containing the following information—

(a) their decision to review that determination; and

(b) the right to submit written representations in accordance with regulation 5.

(3) Where the Authority decide not to review a determination they shall, within 28 days of making the decision, send to the applicant, and to such other persons as they consider the justice of the case may require, a notice in writing containing the following information—

(a) their decision not to review that determination;

(b) the reasons for the decision not to review;

(c) the applicant’s right of appeal to the court on a question of law; and

(d) the time limit for making such an appeal.

(4) On an application to which section 96(2) of the 1995 Act applies, or any corresponding provision in force in Northern Ireland, the Authority shall within 28 days of receipt of the application send to the applicant, and to such other persons as they consider the justice of the case may require, a notice in writing containing the information referred to in paragraph (2)(b).

Section 5 Written representations

Any person notified of a review in accordance with regulation 4 may send written representations to the Authority—

(a) within 21 days of the date of the notice, to give the reasons why that person considers the review should be dealt with by way of an oral hearing;

(b) at any time until that person is notified of the date fixed for the review, or, with the leave of the Authority, at any time after he is so notified, in relation to the review generally.

Section 6 Statement of facts

(1) Where the Authority decide to review a determination, they shall prepare a statement of facts relating to the review and shall send that statement to the applicant, or if none, to such other persons as appear to them to be directly affected by that determination.

(2) A person notified under paragraph (1) shall reply to the Authority within 28 days of the date of the statement therein referred to, indicating—

(a) whether and in what respect any of the facts are disputed; and

(b) subject to regulation 14(2), any other facts which, in the opinion of the person so notified, are relevant to the review.

Section 7 Dealing with a review by an oral hearing

(1) Subject to paragraph (2), the Authority may—

(a) if the applicant and such other persons as it appears to the Authority may be directly affected by the review agree in writing; or

(b) after having regard to the considerations specified in paragraph (3),

decide to determine a review without an oral hearing.

(2) Where the Authority have made an order under section 3 of the 1995 Act (prohibition orders), or where they have made an order under section 29(3) or (4) of that Act (disqualification orders), an oral hearing shall be held for any review of that determination, unless the person prohibited or (as the case may be) disqualified agrees in writing that the Authority may review that determination without an oral hearing.

(3) For the purposes of paragraph (1) the considerations are—

(a) the wishes of the applicant and of such other persons as it appears to the Authority may be directly affected by the review;

(b) whether an oral hearing would be likely to cause unreasonable delay in the determination of the review and, in particular, whether such delay would be likely to affect adversely the interests of any person; and

(c) whether there is, or is likely to be, a conflict of evidence which an oral hearing may help to clarify.

(4) The Authority may hold an oral hearing to determine any question to which these Regulations apply (including any question which the Authority initially decided to review without an oral hearing) if they are satisfied that an oral hearing is desirable, and the requirements of Part II of these Regulations in respect of such hearings shall apply.

Section 8 Notice of date, time, place and manner of review

(1) The Authority shall fix the date, time and place for the review and whether it is to be dealt with by an oral hearing or not, and, not less than 28 days before that date, send to the applicant, and to such other persons as they consider the justice of the case may require, a notice in writing specifying the date, time, place and manner of the review.

(2) Where the Authority has decided to deal with a review by way of an oral hearing, the notice referred to in paragraph (1) shall also ask the person notified to confirm within 21 days of the date of the notice—

(a) whether that person or any representative of that person will attend the hearing; and, if so,

(b) the names, addresses and occupations of the witnesses, if any, that person or his representative intends to call.

(3) The Authority may postpone the date of the review (whether it is to be dealt with by way of an oral hearing or not)—

(a) where both the applicant and the Authority agree; or

(b) in exceptional circumstances,

provided that they send to persons notified under paragraph (1), a notice specifying the new date, time and place of the review not less than 28 days before that date.

Section 9 Withdrawal of application

The applicant may at any time before the date fixed for a review withdraw an application by sending to the Authority a notice in writing signed by the applicant which states that the applicant withdraws that application.

Section 10 Continuance, etc.

(1) This paragraph applies where a person dies after a determination of the Authority to require that person to pay a penalty under section 10 of the 1995 Act, section 168(4) of the Pension Schemes Act 1993 , or under any corresponding provision in force in Northern Ireland.

(2) Where paragraph (1) applies, the Authority may permit that person’s executor or (as the case may be) administrator to make or continue an application for a review as if the personal representative had been substituted for that person.

Section 11 Review Committee

(1) When the Authority decide to review a determination, they shall appoint three of their members to a committee to dispose of the review (whether it is to be dealt with by way of an oral hearing or not), and none of the members so appointed shall be a member who participated in making the determination which is the subject of the review.

(2) A committee appointed in accordance with paragraph (1) is referred to as “the review committee" in these Regulations.

(3) The Authority shall nominate a member of the review committee as Chairman of the review committee.

(4) If, after the commencement of a review, any one member of the review committee other than the Chairman is absent, the review may—

(a) with the consent of the applicant, or,

(b) where there is no applicant, with the consent of such other persons as the review committee or its remaining members consider the justice of the case may require,

be conducted by those remaining members, and in that event shall be deemed to be properly constituted.

(5) A decision of the review committee may be taken by a majority and the decision shall record whether it was unanimous or taken by a majority: provided that where the review committee is constituted by an even number of members, the Chairman of the review committee shall have a second or casting vote.

Section 12 Copies of relevant documents

The review committee shall send to the applicant, and to such other persons as they consider the justice of the case may require, a copy of, or sufficient extracts from, or particulars of, any document or other material relevant to the review which the Authority have in their possession not less than 28 days before the date fixed for the review.

Section 13 Oral hearings

(1) An oral hearing of a review shall be in public, except where the review committee consider that by reason of the disclosure of intimate personal or financial circumstances, commercially sensitive information or information communicated or obtained in confidence, it is just and reasonable for the hearing, or part of it, to be in private.

(2) The following persons shall be entitled to attend, and, in the case of persons listed in sub-paragraphs (a), (e) and (f), to be heard, at an oral hearing whether or not it takes place in public—

(a) the applicant;

(b) a member of the Authority who is not appointed to the review committee;

(c) the chief executive of the Authority;

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) a witness called by the applicant or the Authority or by any other person entitled to be heard;

(f) such other persons as it appears to the Authority the justice of the case may require.

Section 14 Summoning of witnesses

(1) The Authority may by summons require any person in the United Kingdom to attend as a witness at an oral hearing of a review at such time and place as may be specified in the summons and, subject to paragraph (2), at the hearing to answer any questions, produce any documents or otherwise furnish any information relating to any matter in question in the review.

(2) No person shall be compelled to give any evidence or produce any document or other material that he could not be compelled to give or produce in a court of law.

(3) In this regulation, “document" includes information recorded in any form, and any reference to production of a document, in relation to information recorded otherwise than in legible form, is to producing a copy of the information in legible form.

Section 15 Procedure at oral hearings

(1) The review committee shall conduct the oral hearing of the review in such manner as they consider most appropriate for the clarification of the issues before them and generally for the just handling of the proceedings, and, where necessary, may adjourn the proceedings.

(2) Subject to paragraph (3), the applicant, and such other persons as the review committee consider the justice of the case may require, shall be entitled to give evidence, to call witnesses, to question any witnesses, and to address the review committee both on evidence and generally on the subject matter of the review.

(3) The review committee may receive evidence of any fact which appears to them to be relevant even if such evidence would be inadmissible in proceedings before a court of law, but shall not refuse to admit any evidence which is admissible at law and is relevant.

(4) The review committee may, if they are satisfied that it is just and reasonable to do so, permit the applicant to rely on grounds for the review which were not stated in the application.

(5) The review committee may require evidence to be given on oath or affirmation and for that purpose may administer an oath or affirmation in due form.

(6) The review committee may exlude from the hearing, or part of it, any person whose conduct has disrupted or is likely, in the opinion of the review committee, to disrupt the hearing.

(7) If the applicant, or any other person who has notified the Authority of his intention to attend or be represented at the hearing, fails to attend or be represented, the review committee may dispose of the review in the absence of that person or may adjourn the hearing to a later date: provided that before disposing of a review in the absence of any such person the review committee shall consider any written representations sent by him under regulation 5, any reply sent by him under regulation 6(2), and, in the case of an applicant, his application under regulation 3(1) and the documents sent by him under regulation 3(3).

Section 16 Notification of decision

(1) The decision of the Authority following a review shall be recorded in a document which shall also contain a statement—

(a) of the reasons for their decision; and

(b) of the right of appeal to the court on a question of law and the time limit for making such an appeal,

and shall be signed and dated by the Chairman of the review committee.

(2) The Authority shall send a copy of the document recording the decision to the applicant, if any, and to such other persons as appear to them to be directly affected, as soon as is reasonably practicable after the decision is made.

(3) The Authority may publish their decisions as they consider appropriate, but in doing so they shall have regard to the need to preserve the confidentiality of—

(a) any document submitted in relation to an application which they have reason to believe is commercially sensitive or confidential for any other reason; and

(b) any evidence heard in private,

and for that purpose may make any necessary amendments to the text of a decision.

Section 17 Representation

Where a person acts on behalf of another, that person may take all such steps and do all such things for the purposes of these Regulations as that other person is by these Regulations required or authorised to take or do.

Section 18 Time

(1) Subject to the provisions of regulation 3(4), where the Authority is satisfied that a person to whom these Regulations apply (other than the Authority) could not reasonably be expected to send any document, or documents of any description, within the time limit imposed in these Regulations, they may extend the time limit, whether or not it has already expired, in relation to that document or documents of that description.

(2) Where the time prescribed by these Regulations for doing any act expires on a public holiday, the act is in time if done on the next following day which is not a public holiday.

Section 19 Irregularities

(1) Any irregularity resulting from failure to comply with any provision of these Regulations before the review committee has reached its decision shall not of itself render the proceedings void.

(2) Where any such irregularity comes to the attention of the review committee, the review committee may, and must if it considers any person may have been prejudiced by the irregularity, before reaching its decision give such directions as it thinks just to cure or waive the irregularity.

(3) Clerical mistakes in any written statement of a decision following a review, or errors arising in such a document from an accidental slip or omission, may be corrected by the Chairman of the review committee certifying the correction in writing on the document.

Section 20 Method of sending or delivering documents, etc.

(1) Any document required or authorised by these Regulations to be sent or delivered to any person shall be duly sent or delivered—

(a) if it is sent to that person’s appropriate address by post;

(b) if it is delivered to that person or left at that person’s appropriate address.

(2) The appropriate address for the Authority is the address of the office of the Authority .

(3) The appropriate address of any other person to whom any such document is to be sent or delivered is the address given by that person, or if none, the last known address of that person or, in the case of an incorporated company or body, the registered or principal office of that company or body.

Section 21

For the purposes of section 10(1) of the 1995 Act (civil penalties) the period prescribed for the payment of a penalty to the Authority shall be 28 days from the date of the notice in writing sent by the Authority requiring payment of that penalty.