Case Reference: FT/PEN/2025/0005
Pensions
Decided without a hearing
Before
JUDGE HEALD
Between
FERNDALE NEW HOMES LIMITED
Appellant
and
THE PENSIONS REGULATOR
Respondent
Decision: The reference is struck out pursuant to rule 8(2)(a) The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 and the matter is remitted to The Pensions Regulator (with no directions) pursuant to section 44(4) Pensions Act 2008.
REASONS
Ferndale challenges the Regulator's decision not to carry out a review.
On 15 July 2025 the Regulator applied for this reference to be struck out by rule 8(2)(a) The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 ("2009 Rules") on the basis that the Tribunal had no jurisdiction or for the reference to be decided on the papers. On 16 July 2025 Ferndale made an application for a 3rd party to be added to the proceedings. On 1 September 2025 the Regulator also applied for the hearing of this reference to be vacated and the issue of jurisdiction to be dealt with on the papers.
Definitions in this decision include:-
The Employers’ Duties (Registration and Compliance) Regulations 2010 | the 2010 Regs |
Unpaid Contributions Notice, Fixed Penalty Notice & Escalating Penalty Notice | UCN, FPN & EPN |
Background
Ferndale is an employer as defined in the 2008 Act. The Regulator concluded that Ferndale had failed to make required contributions and so on 9 August 2021 issued an UCN pursuant to sections 37 and 38 of the 2008 Act then on 9 September 2021 issued a FPN pursuant to section 40 of the 2008 Act and on 11 October 2021 issued an EPN pursuant to section 41 of the 2008 Act.
On 21 November 2024 (after the Regulator obtained Judgment in the County Court) Ferndale asked the Regulator for a review. On 26 November 2024 the Regulator told Ferndale that it could not carry one out saying:-
"Your request has reached us after the 28-day deadline set by law. This means we cannot accept your application and The Pensions Regulator is not able to carry out a review on our own initiative. The Law only permits us to consider a review up to 18 months following the notice(s) being issued. The notices in this case are outside this period....the deadline for us to accept requests from you is set by law and we have no power to extend it even in exceptional circumstances".
Relevant Law
By sections 37 and 38 of the 2008 Act the Regulator may issue a UCN if it is of the opinion that relevant contributions have not been paid on or before the due date. By section 40 of the 2008 Act the Regulator may issue a FPN if it is of the opinion that there has been a failure to comply with a notice such as a UCN. By section 41(1) of the 2008 Act "The Regulator may issue an escalating penalty notice to a person if it is of the opinion that the person has failed to comply with—(c) an unpaid contributions notice under section 37."
By section 43 of the 2008 Act the Regulator may review a FPN and a UCN:-
"(a)on the written application of the person to whom the notice was issued, or
(b)if the Regulator otherwise considers it appropriate."
Reg 15 of the 2010 Regs provides that:-
The period within which an application to review a notice may be made under section 43(1)(a) of the Act (written application of a person) is 28 days, starting from the day a notice is issued to a person.
The period within which a notice may be reviewed under section 43(1)(b) of the Act (review by the Regulator) is 18 months, starting from the day a notice is issued to a person."
By section 44 of the 2008 Act a person in receipt of a FPN and/or EPN may make a reference to the Tribunal in respect of the issue of the notice or the amount of the notice but only if:-
the Regulator has completed a review of the notice under section 43;
(b)...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."
Rule 8(2) 2009 Rules provides that "The Tribunal must strike out the whole or a part of the proceedings if the Tribunal— (a) does not have jurisdiction in relation to the proceedings or that part of them...." Rule 8(4) 2009 Rules provides that the reference cannot be struck out without first giving Ferndale an opportunity to make representations.
Position of the parties
Ferndale's position is that there were no unpaid contributions and so the UCN should not have been issued but it does not dispute that it received the notices. For example (emphasis added) in the reference Ferndale said "This matter is dated back to September 2021 upon receipt of the above notices we attempted to contact the pension provider NEST..."andon 1 April 2025 Ferndale, when completing paperwork for the Tribunal said "We received penalties for unpaid contributions.."
Ferndale has asked to be treated as an exceptional case. It also said that in November 2021 someone at the Regulator did not refer to the Regulator's own ability to carry out a review and that the pension provider NEST confirmed that there were no submitted schedules.
The Regulator's position is that the Tribunal has no jurisdiction to consider the Appeal because neither of the conditions in section 44(2) 2008 Act are met. Ferndale in response when making its representations said:-
"It cannot be RIGHT or JUST that we can be fined for non-payment of a debt that we do not and never have owed which is now acknowledged by the Pension Provider.
It cannot be RIGHT or JUST that we can be penalised for the Pension Provider sending incorrect information to the Pension Regulator, without being allowed to defend ourselves.
It cannot be RIGHT or JUST that the pension provider can supply written evidence to the pension regulator and refuse to send us written evidence once they realised their error.
It cannot be RIGHT or JUST that the pension provider did not write to the pension regulator to retract the written evidence once they realised their error.
It cannot be RIGHT or JUST that the pension regulator do not hold the pension provider to account for providing incorrect information
It cannot be RIGHT or JUST that a body that is empowered by the government has the power to ignore evidence and unable to be challenged to the standards of normal civil or criminal law
It would be Right and Just for the Pension Provider to be ordered to court to explain it actions."
Decision
The Notices were issued and received by Ferndale in August, September and October 2021. Any request for a review had to be sent to the Regulator within 28 days days of receipt. The request was not sent until November 2024.
Section 44(2) of the 2008 Act provides for a reference to the Tribunal only if:-
the Regulator has completed a review under section 43
there has been an application for a review but the Regulator has decided not to carry one out.
By reg 15(2) of the 2010 Regs the Regulator had 18 months to carry out a review on its own volition but did not do so. Although Ferndale asked for a review that request was not effective because it was not made within the 28 day time limit constraint of reg 15(1) 2010 Regs.
Whatever the issues between NEST and Ferndale that does not impact the time constraints in the 2010 Regs. Even if individuals at the Regulator in November 2021 did not mention to Ferndale the ability of the Regulator to carry out its own review that does not alter that fact that it did not do so.
Accordingly the reasonable excuse question does not arise and neither of the conditions in section 44(2) of the 2008 Act that permit a reference to the Tribunal are satisfied. The Tribunal does not have jurisdiction.
Having considered the above and the overriding objective the reference is struck out by rule 8(2)(a) of the 2009 Rules and the matter is remitted to the Regulator with no directions. In light of this strike out decision no orders have been made on the other outstanding applications.
Signed Judge Heald Date: 24 September 2025