Case Reference: FT/PEN/2024/0380
Pensions
Decided without a hearing
Before
JUDGE ARMSTRONG-HOLMES
Between
DEVTECH SECURITY LIMITED
Appellant
and
THE PENSIONS REGULATOR
Respondent
Decision: The reference is struck out under Rule 8(2).
REASONS
On 11th November 2024, the Appellant submitted a reference to the Tribunal by way of a completed form GRC1. The reference relates to a Fixed Penalty Notice (“FPN”) issued to the Appellant on 29th August 2024 for a failure to make a Declaration of Compliance (“the Declaration”) by its statutory deadline of 29th February 2024. The Respondent now applies to strike out the reference under Rule 8(2) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory) Rules 2009 on the ground that the Tribunal does not have jurisdiction to deal with the reference.
Following the Appellant’s failure to make a Declaration within the required timeframe, a Compliance Notice was issued by the Respondent on 3rd July 2024, extending the deadline to complete the Declaration of Compliance to 13th August 2024. In the absence of a completed Declaration being received, and following that extended deadline passing, the Respondent issued the FPN for the sum of £400 on 29th August 2024. The FPN provided the Appellant with an additional period within which to complete the Declaration, which ran until 26th September 2024. Payment of the penalty was required by the same date, and the right to request a review of the penalty was detailed in the FPN.
The Appellant did not complete the Declaration until 27th September 2024, which was of course after the time for doing so had passed, and it wasn’t until 3rd October 2024 that the Appellant then requested a review of the FPN. This was outside the 28-day period within which an application may be made to review a FPN, and the Respondent declined to exercise its discretion to carry out a review. The Appellant was informed of this decision on 15th October 2024.
The Appellant submitted its reference to the Tribunal on 11th November 2024, stating that it wished to appeal the £400 penalty which had been imposed, explaining that the company has only three employees, two of whom are directors, and the third being the mother of the directors, who only works part-time and who they believed was a named director at companies house. It was submitted that they believed that she would consequently have been exempt from the auto-enrolment requirement.
Having regard to the jurisdictional issues identified in the case of J.M. Kamau Limited v The Pensions Regulator [2025] UKFTT 00484 (GRC), the Tribunal issued case management directions on 3rd February 2025, requiring the Appellant to provide a witness statement, signed by a Statement of Truth, which confirmed the following:
The date when the Appellant became aware of the FPN and how they became aware of it (i.e. by post or email, and from whom).
Whether any information had been sent to the Appellant before that date, when it was received, and what that information was.
The date(s) that a review by the Respondent was requested for the FPN.
On 14th February 2025, the Appellant submitted a signed witness statement, via its accountants, Wallace White Accountants, which appears to be signed by Colin McDevitt, a director of the Appellant company. That statement contained a Statement of Truth, and a summary of its contents are below:
The Appellant became aware of the FPN on 9th September 2024 following receipt of the notice by post.
Prior to that point, the Appellant had received an earlier notice from the Respondent, dated 10th June 2024, regarding auto-enrolment. That document was handed to the Appellant’s previous accountant for actioning.
Following receipt of the FPN on 9th September 2024, those documents (including the earlier notice) were passed on to the Appellant’s new accountants, Wallace White Accountants. Action was then taken to bring the Appellant’s affairs into order.
The Appellant is a family business and the only individual eligible for auto-enrolment was Mr McDevitt’s mother, who did not wish to participate.
That a review was requested on 2nd October 2024, but was declined by the Respondent on 15th October 2024.
On 13th August 2025, the Respondent submitted an application to the Tribunal to strike out the Appellant’s reference, submitting that the Tribunal does not have jurisdiction to hear the reference. The Appellant opposes this application and has made written representations which are summarised as follows:
The Appellant made a number of written representations to the Respondent, explaining the circumstances which led to them inadvertently missing a filing deadline.
The only employee eligible for auto-enrolment was the mother of the directors, who was engaged in an administrative capacity and the directors acted in good faith at all times.
That if the Respondent is unwilling to accept the explanation and remove the penalty, that a hearing should take place.
The Law
Section 43 of the Pensions Act 2008 (“the Act”) provides the power for the Regulator to review notices, and is as follows:
43: Review of notices
The Regulator may review a notice to which this section applies –
on the written application of the person to whom the notice was issued; or
if the Regulator otherwise considers it appropriate.
This section applies to –
a compliance notice under section 35;
a third party compliance notice issued under section 36;
an unpaid contributions notice issued under section 37;
a fixed penalty notice issued under section 40;
an escalating penalty notice issued under section 41.
Regulations may prescribe the period within which –
an application to review a notice may be made under subsection (1)(a);
a notice may be reviewed under subsection (1)(b).
Regulation 15(1) of the Employers’ Duties (Registration and Compliance) Regulations 2010 (“the Regulations”) 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.”.
Regulation 15(2) of the Regulations stipulates that “The period within which a notice may be reviewed under section 43(1)(b) of the Act (review by Regulator) is 18 months, starting from the day a notice is issued to a person.”.
Regulations 15(3) and 15(4) then set out that a number of rebuttable presumptions apply when a FPN is issued (see Philip Freeman Mobile Welders Limited v The Pensions Regulator [2022] UKUT 62 (AAC) and J.M. Kamau Limited v The Pensions Regulator [2025] UKFTT 00484 (GRC)). These rebuttable presumptions are as follows:
It is presumed that where a notice is given a date by the Regulator, it was posted or otherwise sent on that day.
It is presumed that if a notice is posted or otherwise sent to a person’s last known or notified address, it was issued on the day on which that notice was posted or otherwise sent; and
It is presumed that a notice was received by the person to whom it was addressed.
Whilst the presumptions may be rebutted, the Appellant bears the burden of doing so, but if it does, then the burden passes back to the Regulator. Rebutting a presumption requires more than a mere assertion however (see London Borough of Southwark v Akhtar and Stel LLC [2017] UKUT 150 (LC) at para. 82).
Section 44 of the Pensions Act 2008 sets out the circumstances where a person may bring a reference to the Tribunal:
44: References to Firs-tier Tribunal or Upper Tribunal
A person to whom a notice is issued under section 40 or 41 may, if one of the conditions in subsection (2) is satisfied, make a reference to the Tribunal in respect of –
the issue of the notice;
the amount of the penalty payable under the notice.
The conditions are –
that the Regulator has completed a review of the notice under section 43;
that 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.
In accordance with section 44(2) of the Act, a reference may only be made to the Tribunal where there has either been a review, or where a written application for a review was requested under section 43(1)(a) of the Act, within the 28-day period prescribed by Regulation 15(1), but was not carried out by the Regulator. The tribunal’s role, if one of these two conditions is satisfied, is set out in section 103 of the Pensions Act 2004. As stated in Kamau (at para. 13), when considering a reference:-
“The Tribunal must make its own decision following an assessment of the evidence presented to it (which may differ from the evidence presented to The Pensions Regulator), and can reach a different decision to that of the Pensions Regulator, even if the original decision fell within the range of reasonable decisions.”
The Regulator when carrying out a review, and the Tribunal on a reference is entitled to consider reasonable excuses for non-compliance by an employer. In The Pensions Regulator v Strathmore Medical Practice [2018] UKUT 104 (AAC), the Upper Tribunal said that the legislation is “permissive”, and stated as follows:
“Although the legislation says nothing about reasonable excuse, it does not prevent the Regulator (or the First-tier Tribunal) from having regard to it. I do not go so far as to say that they must always have regard to it – there might well be a case where that would not be appropriate – but it is certainly proper to take reasonable excuse into account.”
Discussion and Conclusion
There is no dispute that the Appellant received the FPN at the correct address, which is the address held by Companies House and by His Majesty’s Revenue and Customs. The presumptions in Regulation 15(4) therefore apply, and the time for making an application to review the notice under section 43(1)(a) of the Act was therefore limited to 28 days (Regulation 15(1)) from the day the notice was issued (i.e. 29th August 2024). This required the application for review to be made before 26th September 2024. However, the Appellant submitted the application to the Respondent on 3rd October 2024, outside of this 28-day period.
For a person to make a reference to the Tribunal under section 44 of the Act, an application for a review must have been submitted within the 28-day period, or alternatively, the Respondent must have carried out a review, having considered it appropriate to do so, within 18 months of the day the notice was issued (s.43(1) of the Act). The latter situation relies upon the Respondent exercising its discretion to carry out a review. It declined to do so. In this instance, therefore, neither situation is applicable, and consequently the Tribunal has no jurisdiction to hear the reference.
The reference is struck out under Rule 8(2).
Signed: Date:
Judge Armstrong-Holmes 2nd October 2025