Nicola Grant (t/a Elite Beauty and Tan) v The Pensions Regulator

This is a reference against a fixed penalty notice (“FPN”) issued under section 40 of the Pensions Act 2008 (“the Act”) and Escalating Penalty Notice (“EPN”) under section 41 of the Act by the Pensions Regulator (“the Regulator”). The Regulator has invited the Tribunal to strike out the appeal under Rule 8(2)(a). This is on the basis that the Tribunal does not have jurisdiction because no review has been undertaken by the Regulator.  

Under Rule 8(2) 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 - (a) does not have jurisdiction in relation to the proceedings or that part of them; and (b) does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them”.

By directions dated 26 August 2025, the Appellant was given the opportunity to make representations about the proposed striking out under Rule 8(4), but no representations have been received.

Under section 43(1) of the Pensions Act 2008, 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 for a review under section 43(1)(a) is 28 days from the date of the notice. 

Under section 44 of the Pensions Act 2008, 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)(b). 

I have considered the background information provided by both parties. 

The Regulator issued the Appellant with an Unpaid Contributions Notice on 30 September 2024, an FPN on 26 November 2024 and an EPN on 30 December 2024. The Appellant requested a review of the FPN and EPN on 21 March 2025. The Respondent declined to conduct a review because it had been received outside the 28-day time frame for doing so and declined to conduct a review on its own initiative. 

The Appellant’s grounds of appeal state that the pension submissions had been made but not transferred over from her payroll software. She stated that they have all since been reprocessed manually on the NEST website and there are therefore no outstanding payments owed. The Appellant also says she is in financial hardship and would not be able to pay the fine.

The Regulator says that the Tribunal does not have jurisdiction because the conditions in section 44(2) of the Pensions Act 2008 are not met. The Regulator refers to the decision in Mosaic Community Centre Limited v Pensions Regulator (PEN/2015/0004) as showing that the Tribunal only has jurisdiction when a review under section 43 has been undertaken by the Regulator. The Regulator says there was no review in this case. There was also no refusal to carry out a review within the meaning of section 44(2) because the Appellant had not requested a review in the prescribed 28-day period which is set down in Regulation 15(1) of the Employers’ Duties (Registration and Compliance) Regulations 2010. The Regulator therefore says that the necessary conditions in section 44 to permit a reference to the Tribunal are not met. 

I considered the Upper Tribunal authority in Philip Freeman Mobile Welders Ltd v The Pensions Regulator [2022] UKUT 62 (AAC). This confirms that the presumption of service is not irrebuttable, and the rebuttable presumption of service applies to the question of whether a notice has been received for the purposes of the time limits for a review. Where there is a dispute about receipt of notices which may affect the relevant time limits, the evidence should be considered by the Tribunal. 

I consider that on the evidence filed by both parties at the Tribunal there is no basis for displacing these presumptions.

It is clear from the information provided by both parties that no request for a review of the FPN was made within the 28-day time limit. The Regulator refused to conduct any review for this reason. This means that the conditions of Section 44 of the Pensions Act are not met. There is no issue relating to receipt of notices. The Tribunal does not have jurisdiction to consider this appeal and so it is struck out under Rule 8(2)(a).