Horizon Tower Cranes (St Neots) Ltd v The Pensions Regulator

This is an appeal against a Fixed Penalty Notice issued under section 40 of the Pensions Act 2008 (the Act) and an Escalating Penalty Notice issued under section 41 of the Act.

Under section 43(1) of the Act, the Regulator may review a fixed penalty and escalating penalty notice, “(a) on the written application of the person to whom the notice was issued, or (b) if the Regulator otherwise considers it appropriate”. The prescribed period for a written application to review under section 43(1)(a) is 28 days from the date of the notice (Regulation 15(1) of the Employers’ Duties (Registration and Compliance) Regulations 2010).

Under section 44 of the Act, a person can make a reference to the Tribunal in respect of the issue or amount of a penalty notice. The conditions are that the Regulator has completed a review under section 43, or “the person to whom the notice was issued has made an application for the review of the notice under section 43(1)(a) and the Regulator has determined not to carry out such a review” (section 44(2)).

This means that the Tribunal’s powers to consider a reference are limited. If the Regulator has not completed a review, a person needs to have made an application for a review under section 43(1)(a). This means an application within the 28 day time limit. If an application has been made outside the time limit, and the Regulator has decided not to conduct a review, the Tribunal does not have jurisdiction to consider a reference.

Under Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, the Tribunal must strike out the whole or a part of the proceedings if the Tribunal does not have jurisdiction in relation to the proceedings or that part of them.

The Appellant initially made a reference to the Tribunal on 5 August 2024 indicating it wished to challenge a decision of the Respondent to impose a financial penalty. The Appellant later provided a copy of a decision dated 7 October 2024 in which the Respondent determined not to carry out a review of a fixed penalty notice and escalating penalty notice. This was on the grounds that the application for a review was received by the Respondent after the 28-day deadline.

By Directions issued on 25 July 2025, the Appellant was invited to make representations by 11 August 2025 as to why the referral should not be struck out. No representations have been received by the Tribunal.

Having considered the papers, I find that the Tribunal does not have jurisdiction to hear this appeal. The conditions in section 44(2) of the Act must be met before a reference can be made to the Tribunal about the issue of a notice. The Regulator did not receive a valid written application for a review within 28 days from the date of the notices.

This is not a case where the Appellant is disputing whether it received the notices at all, meaning it would not have been possible to apply for a review within 28 days. There do not appear to be any disputed facts which would be relevant to why the Appellant did not seek a review within 28 days. The appeal form provides an explanation relating to two different pension schemes – it does not suggest that the relevant notices were not received. I therefore consider that it is not necessary to have a hearing on this issue and it is appropriate to strike out on the papers.

For these reasons the proceedings are struck out.