The Occupational Pension Schemes (Preservation of Benefit and Charges and Governance) (Amendment) Regulations 2018

Section 1Citation and commencement

(1) These Regulations may be cited as the Occupational Pension Schemes (Preservation of Benefit and Charges and Governance) (Amendment) Regulations 2018.
(2) Regulation 2(2) comes into force on 1st October 2019.
(3) The remaining regulations come into force on 6th April 2018.

Section 2Amendment of the Occupational Pension Schemes (Preservation of Benefit) Regulations 1991

(1) Regulation 12 (transfer of member’s accrued rights without consent) of the Occupational Pension Schemes (Preservation of Benefit) Regulations 1991 is amended as follows.
(2) In paragraph (1), after “accrued rights” insert “which are not relevant money purchase rights”.
(3) In paragraph (1A), for “section 73(2)(a)(i)” substitute “section 73(2)(a)”.
(4) After paragraph (1A) insert—
(1B) For the purposes of section 73(2)(b) and (4)(b) of the Act, a scheme may provide for the member’s relevant money purchase rights to be transferred to another occupational pension scheme without the member’s consent where the conditions set out in one of paragraphs (7) to (9) are satisfied.
(5) In paragraph (2A), for sub-paragraph (b)(i) substitute—
(i) the scheme’s principal employer or controlling employer; and
(6) After paragraph (6) insert—
(7) The condition set out in this paragraph is that the receiving scheme is authorised under the Pension Schemes Act 2017 .
(8) The conditions set out in this paragraph are that—
(a) the transferring scheme employer and the receiving scheme employer are undertakings;
(b) the transferring scheme employer is a group undertaking in relation to the receiving scheme employer; and
(c) the member whose rights are to be transferred is a current or former employee of an undertaking which is a group undertaking in relation to the transferring scheme employer or the receiving scheme employer.
(9) The conditions set out in this paragraph are that—
(a) within the year ending with the date of the transfer, the trustees of the transferring scheme have obtained and considered written advice in relation to the transfer from a person whom they reasonably believe to be qualified to give that advice by reason of that person’s ability in, and practical experience and knowledge of, pension scheme management (“the appropriate adviser”); and
(b) the trustees of the transferring scheme have determined that the appropriate adviser is independent of the receiving scheme after considering whether, during the year ending with the date on which the advice was provided, the appropriate adviser (or, where the appropriate adviser is an undertaking, a group undertaking in relation to the appropriate adviser) has—
(i) received payment for services from the receiving scheme;
(ii) received payment from a service provider or a group undertaking in relation to a service provider; or
(iii) received payment from the receiving scheme employer or a group undertaking in relation to the receiving scheme employer.
(10) Where an employer has the sole power to effect a transfer of a member’s accrued rights—
(a) paragraph (9) has effect as if “member’s employer has” were substituted for “trustees of the transferring scheme have”; and
(b) the employer must confirm to the trustees of the transferring scheme that it has complied with paragraph (9) as so modified.
(11) In this regulation—
“controlling employer”, in relation to a scheme, is the employer that has the power to act on behalf of all employers in the scheme in relation to the scheme rules;
“group undertaking” has the meaning given by section 1161(5) of the Companies Act 2006 (meaning of “undertaking” and related expressions);
“principal employer”, in relation to a scheme, is the principal employer for the purposes of the scheme in accordance with the scheme rules;
“receiving scheme employer” means the principal employer or controlling employer of the receiving scheme;
“relevant money purchase rights” are rights to money purchase benefits, where the assets held for the purpose of providing those benefits do not include any guarantee or promise in relation to the amount of the benefits to be provided, or the amount available for the provision of the benefits;
“services” means advisory, administration or investment services provided to the receiving scheme, and a “service provider” is a provider of such services to the scheme;
“transferring scheme employer” means the principal employer or controlling employer of the transferring scheme;
“undertaking” has the meaning given by section 1161(1) of the Companies Act 2006.

Section 3Amendment of the Occupational Pension Schemes (Charges and Governance) Regulations 2015

(1) Regulation 4 (restrictions on charges) of the Occupational Pension Schemes (Charges and Governance) Regulations 2015 is amended as follows.
(2) After paragraph (2) insert—
(3) The application of this regulation and regulations 5 to 9 in respect of the value of a member’s rights is not affected by—
(a) a transfer of those rights from one relevant scheme to another; or
(b) a subsequent transfer of those rights from one arrangement to another within the receiving scheme,
where the member has not given consent to the transfer.
(4) This Chapter does not apply to a member of a relevant scheme to the extent of the value of that member’s rights in an arrangement (“Arrangement A”) where—
(a) the value of the rights has been transferred to Arrangement A from an arrangement which is not a default arrangement;
(b) the member has not given consent to the transfer;
(c) before the transfer took place, Arrangement A was not a default arrangement; and
(d) the member has, in the 5 years ending with the date of the transfer, expressed a choice as to where his or her contributions were allocated.

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