IN THE FIRST TIER TRIBUNAL
(PENSIONS REGULATION)
Appeal No: PEN/2023/0322 (FPN)
and PEN/2023/0323 (EPN)
BETWEEN:
C & M MALDON LIMITED
Appellant:
and
THE PENSIONS REGULATOR
Respondent:
DECISION
The Tribunal approves the agreed Consent Order in the circumstances where through mediation between the parties, they have agreed to resolve the matter as set out in the said Consent Order and the subsequent payment of £400.00 by the Appellant to the Respondent which payment has been received and acknowledged by the Respondent.
Timeline of Key Events:
Date | Event |
|---|---|
11 Jan 2021 | Unpaid Contributions Notice (UCN) issued under §§37–38 Pensions Act 2008 (PA08) |
8 Feb 2021 | Deadline to comply with UCN |
10 Feb 2021 | Fixed Penalty Notice (FPN) issued under §40 PA08 – £400 |
12 Mar 2021 | First Escalating Penalty Notice (EPN) issued – £500/day from 9 Apr 2021 |
14 Apr 2021 | Appellant submits review request (63 days post-FPN) |
27 Apr 2021 | Respondent declines review due to lateness; reissues EPN with new deadline |
28 Apr 2021 | Second EPN issued – £500/day from 26 May 2021 |
24 Oct 2022 | Appellant submits evidence of compliance |
30 Oct 2022 | Respondent acknowledges compliance but maintains penalties |
26 Oct 2023 | Notice of Appeal filed |
15 Feb 2024 | Tribunal receives appeal; Registrar Bamawo issues directions |
9 Apr 2024 | Respondent applies to strike out appeal under Rule 8(2)(a) |
25 Jul & 13 Aug 2024 | Judge Griffin refuses stay behind lead case (Kamau) |
17 Mar 2025 | CVP hearing held; mediation encouraged |
18 Mar 2025 | £400 FPN paid by Appellant |
12 Jun 2025 | Consent Order signed: EPN revoked, FPN confirmed |
Legal Issues and Authorities:
Jurisdiction of Tribunal
Statutory Basis: §§43–44 PA08
Issue: Whether Tribunal has jurisdiction when no valid review was conducted.
Respondent’s Argument:
Review request was out-of-time (§43(1)(a)); no discretionary review (§43(1)(b)).
Therefore, appeal conditions under §44(2) PA08 not met.
Supporting Case Law:
Mosaic Community Care Ltd (PEN 2015 0004) – Tribunal lacks jurisdiction without valid review.
Keith’s Rubbish Clearance Ltd (PEN 2020 0203) – Bare denial of receipt insufficient to rebut service presumption.
Presumption of Service
Statutory Basis:
§303(6)(a) PA04
Regulation 15(4) of Employers’ Duties (Registration and Compliance) Regulations 2010
Issue: Whether notices were lawfully served.
Respondent’s Argument:
Notices sent to registered office (Companies House address).
Presumptions of service apply; Appellant’s denial is insufficient.
Supporting Case Law:
Southwark v Akhter [2017] UKUT 150 – Presumption of service upheld; bare denial rejected.
Validity of Penalty Notices:
FPN: Issued under §40 PA08 for failure to comply with UCN.
EPN: Issued under §41 PA08; daily penalty of £500.
Appellant’s Argument:
Penalties wrongly applied; obligations met.
Review request submitted with evidence but ignored.
Notices not received; procedural unfairness.
Tribunal Directions and Case Management:
Rule 8(2)(a): Strike-out for lack of jurisdiction.
Rule 32(1): Oral hearing required unless both parties consent to paper determination.
Tribunal Decisions:
Refused stay behind lead case (Kamau) – factual matrix differs.
Ordered oral hearing and bundle preparation.
Clarified consent order wording; confirmed £400 FPN was paid.
Resolution and Outcome:
Consent Order (17 Mar 2025):
EPN revoked; no sums payable.
FPN confirmed; £400 payable (paid on 18 Mar 2025).
Final Hearing (27 Oct 2025):
Tribunal to determine any remaining issues and merits of appeal.
Role of Mediation in the Tribunal Proceedings:
Tribunal's Recommendation:
During the hearing on 17 March 2025, the Tribunal, presided over by Judge Kennedy KC, advised that inter-party mediation would be an appropriate alternative procedure under the Tribunal Procedure Rules 2009.
This recommendation was made because mediation aligned with the overriding objective of the Tribunal: to deal with cases justly and proportionately, including saving expense and ensuring procedural fairness.
Facilitating Agreement:
Following the Tribunal’s advice, representatives of both parties—Debbie Simpson for the Appellant and Neil Farrow for the Respondent—entered into mediation.
The mediation led to a Consent Order, which resolved the dispute without the need for further adversarial proceedings.
Terms of the Consent Order:
The Escalating Penalty Notice (EPN) of £14,000 was revoked, and no sums were payable under it.
The Fixed Penalty Notice (FPN) of £400 was confirmed as payable, and the Appellant subsequently paid this amount on 18 March 2025.
Benefits of Mediation:
Avoided further litigation: The mediation prevented a prolonged dispute and the need for a full hearing on the merits.
Preserved resources: Both parties saved time and costs associated with continued legal proceedings.
Promoted cooperation: The process encouraged constructive dialogue and mutual resolution in accordance with the spirit of Rule 2 of the Tribunal rules.
Tribunal Oversight:
Although the parties reached agreement, the Tribunal retained oversight to ensure the Consent Order was consistent with legal standards and the Tribunal’s objectives.
The Tribunal later sought clarification on the wording of the Consent Order to confirm that the payment had indeed been made, demonstrating its role in safeguarding procedural integrity.
This appeal and related matters have taken an extraordinary and disproportionate amount of Court time and costs. One only has to look at the Updated Bundle provided for this final paper hearing to appreciate just how disproportionate it has been. Even the Consent Order drafted after mediation left an unsatisfactory degree of certainty. The need for sensible mediation was apparent when one considers the case law that has been referred to above and the rational in the Decision of the then Chamber President, Peter Lane in PN/2015/0004 in his comprehensive Judgment dated 10 August 2015 and the later decision in PEN/2020/0203 in a further Judgment from David Hunter QC dated 08 April 2021.
Accordingly, the Tribunal hereby approves the terms reached in the outcome as agreed between the parties and the related but subsequent recognition that the sum of £400.00 has been paid by the Appellant and received by the Respondent in accordance with the spirit of Rule 2 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, in particular:
The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
Dealing with a case fairly and justly includes—
dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
avoiding unnecessary formality and seeking flexibility in the proceedings;
This appeal has at last therefor been properly concluded.
Brian Kennedy KC 27 October 2025.