Manchester Print Services Limited v The Pensions Regulator

By this reference Manchester Print Services Limited (“the Employer”), challenges a fixed penalty notice (”FPN”) issued by the Regulator on 15^th January 2023.

The FPN was issued under s. 40 of the Pensions Act 2008. It required the Employer to pay a penalty of £400 for failing to comply with the requirements of a compliance notice (CN) issued on 16^th November 2022. The Compliance Notice was issued under s. 35 of the Pensions Act 2008. It directed the Employer file a redeclaration of compliance by 28^th December 2022.

The Employer referred the matter to the Tribunal on 24^th February 2023.

The parties and the Tribunal agreed that this matter was suitable for determination on the papers in accordance with rule 32 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, as amended. The Tribunal considered all the evidence and submissions made by both parties.

Under s. 44 of the 2008 Act, a person who has been issued with a FPN may make a reference to the Tribunal provided an application for review has first been made to the Regulator. The role of the Tribunal is to make its own decision on the appropriate action for the Regulator to take, taking into account the evidence before it. The Tribunal may confirm, vary or revoke a FPN and when it reaches a decision must remit the matter to the Regulator with such directions (if any) required to give effect to its decision.

The Employer’s Notice of Appeal, dated 24^th February 2023, indicates that the company relies upon a financial advisor and/or accountant to deal with compliance issues. The company passed the letter received before Xmas to the others and assumed it was dealt with. It wasn’t it seems. The seek the FPN set aside on that basis.

The Regulator’s Response indicates that the Appellant failed to provide certification of compliance, as is required; a compliance notice followed, which was sent to the registered office address of the company. The FPN was sent to the same address. The Regulator provides materials indicated that well before the CN regular reminders were sent to the Appellant, which were not heeded.

The Regulator indicates a Review was completed as a result of the Appellant’s request. Having considered the circumstances advanced the FPN was confirmed.

The Tribunal considered a bundle of 95 pages.

The Appellant seeks to have the FPN overturned on the basis that the CN was passed to others to deal with but they failed to do what they should have. The Appellant seeks I assume a waiver as it is averred not to be its fault.

The Regulator responds that there is no excuse for non-compliance, let alone a reasonable one. It is the Employer’s responsibility to meet the legal requirements, and here the Appellant has not provided evidence to reverse the imposition of the FPN.

The Regulator maintains that the CN was correctly posted and following the presumptions is deemed to have been received, unless contrary material is shown to rebut the presumptions. The Regulator avers no such material is shown and as such the CN was correctly served.

I find that the Appellant has failed to provide any proper basis for not complying with the CN. The responsibility for completing the declaration rests with the employer and here it could have and should have dealt with matters. The Appellant by implication blames the failure of others to act for the non-compliance. I’m afraid the burden is on the Appellant to ensure that compliance is reached whether it acts alone or by an agent. Nothing has been raised that could allow the Tribunal to overturn the proper decision of the Regulator.

Having failed to comply, the standard penalty was imposed. The penalty is designed to remind companies of the importance of compliance and I do not see that the penalty in this case is inappropriate or disproportionate to the breach.

In all the circumstances I am driven to the view the appeal has no merit and I remit the matter to the Regulator, upholding the Fixed Penalty Notice.

It is not a matter for the Tribunal but if others have failed to assist the Appellant the argument is with them, not the Regulator.

No further directions are required