We have a range of powers that we can use if we wish to act to protect members’ benefits or if pensions legislation is not being complied with. We follow certain procedures when we use our powers.
Our enforcement strategy and enforcement policies contain more information on our broader approach to enforcement.
Using our powers
Our staff decide whether we can use some of our powers. This includes issuing improvement notices and enforcing employers’ automatic enrolment duties.
Some of our powers can only be exercised by the Determinations Panel (DP). These are known as ‘reserved powers’. They include the power to prohibit pension scheme trustees and our anti-avoidance powers.
The DP is part of TPR, but its members are not TPR employees. The DP makes case decisions independently and has its own support staff, including legal advisers. It operates separately from our case teams, which sit in our operational directorate.
Procedures in DP cases
The DP only becomes involved in a case if one of our case teams asks it to use its powers, or where there is a third party application. The DP does not start its own cases.
Third parties can make an application asking us to use certain powers (for example, if they want us to waive their disqualification from acting as a trustee). Read our guidance on making third-party applications.
DP cases are progressed using the standard procedure or the special procedure.
DP decisions on whether to use powers under the standard procedure, and to use powers under the special procedure, are called determinations. The key features of standard and special procedure are as follows.
Standard procedure
Under the standard procedure the case team issues a warning notice. This sets out either:
- why the case team believes the DP should use its powers
- the case team’s view on an application received from a third party asking the DP to use certain powers
The case team sends the warning notice to all parties it believes to be directly affected by the proposed use of powers. These parties are given a reasonable opportunity to provide representations on the warning notice.
The case is subject to a further review by the case team and referred to the DP if appropriate. The DP will then make its determination.
The case team (or, in the case of an application from a third party, the third party) may withdraw a case from the DP at any time before the DP sends out its determination. A case team might do this, for example, if an acceptable settlement is reached. A third party might do this, for example, if it no longer wishes the DP to use its powers.
Special procedure
In some cases, the case team may believe that the DP needs to use its powers urgently using the special procedure. This procedure is used when the case team considers that there is, or (in certain scenarios) is likely to be, an immediate risk to the interests of the members or the assets of a scheme. For example, where there is evidence of trustee failings, the case team may consider that an independent trustee with exclusive powers should be appointed without delay.
If the case team uses the special procedure, it will refer the matter to the DP for an initial determination earlier than it usually would. This will mean that some or all of the usual steps in a standard procedure case do not happen. For example, the case team may not give a warning notice to the directly affected parties before action is taken.
If the special procedure is used, and the DP makes an initial determination, the DP will carry out a compulsory review of that determination as soon as it reasonably can. Before the compulsory review, the directly affected parties are sent the papers that the DP had when it made its initial determination and are given the opportunity to provide representations for the DP to consider. The DP then considers any relevant new information and makes a final determination. This final determination may confirm, vary or amend the DP’s initial determination, or substitute a different determination.
The case team may withdraw its request under the special procedure before the DP sends out its initial determination. The case team might do this, for example, if it no longer considers that the special procedure applies. Depending on the circumstances, the case team may then choose to pursue the case under the standard procedure.
Determinations
In reaching its determination, the DP must consider the interests of the pension scheme members and the parties it identifies as directly affected.
After the DP makes a determination, the parties are sent a written notice of this. This notice will set out the decision made and will usually also include the reasons for this. If reasons cannot be provided in the notice, these will be provided as soon as possible afterwards.
Read our full case team procedure and DP procedure. These set out the standard and special procedures from the case team’s involvement through to the DP’s determination.
Challenging a determination
A directly affected party may challenge any final determination that the DP makes under the standard or special procedures. A challenge, called a reference, is made to the Upper Tribunal and should be made no later than 28 days after notice of the determination has been given.
If a determination is made to use a power, in many cases we cannot use this power until the 28-day period has expired, or if a referral has been made, until the reference and any further appeals against it are disposed of. A small number of our powers can be used straight after determination.
The Upper Tribunal will decide whether to confirm, revoke, vary or substitute the determination and any documents we have issued to use the power.
Permission to bring further appeals from the Upper Tribunal’s decision can be requested on points of law.
Publishing a determination
We may decide to publish a DP determination notice. For special procedure cases, we will usually only do this after the compulsory review.
Procedures in staff cases
The procedure we use when a member of our staff decides whether we can use a power will vary depending on the power in question.
For example, we use the staff determinations procedure (PDF, 123kb, 12 pages) for the staff powers set out in section 93 of the Pensions Act 2004.
For details on our approach to enforcement in relation to our other staff powers, including those relating to automatic enrolment, please see our enforcement policies.