Davide Cupertino v The Pensions Regulator

The reference is dismissed, and the matter is remitted to the respondent. The fixed penalty notice is confirmed, and no further directions are required.

This is a reference (appeal) in respect of a fixed penalty notice (FPN) with reference 124851458784 issued on 21 August 2024.

The appellant is an employer with automatic enrolment duties under the Pensions Act 2008 (the 2008 Act).

In February 2024 the respondent wrote to the appellant regarding his automatic enrolment duties. The letter records the duties start date (the date the appellant’s first employee started working for him) as 1 January 2024. The letter informs the appellant that he should use the respondent’s online tool to work out what he needed to do and how to meet his duties. The letter informs the appellant that he needs to complete a declaration of compliance by 31 May 2024. The letter is addressed to the appellant at the same address as all subsequent correspondence. The letter notes that the respondent does not hold an email address for the appellant and asks him to confirm whether that is correct so that they can send him information and reminders by email.

In March 2024 the respondent wrote to the appellant asking him to update his contact details by providing an email address. The letter reminded the appellant that he has duties for automatic enrolment, referred him to the online tool and stated that the deadline for him to complete the declaration of compliance was 31 May 2024.

In May 2024 the respondent wrote to the appellant requiring him to take immediate action to avoid a potential fine. The letter states that the appellant must complete his declaration of compliance and that the deadline for doing so was 31 May 2024.

On 10 June 2024 the respondent sent the appellant a warning letter noting that the appellant had failed to complete a declaration of compliance by the deadline of 31 May 2024. The letter informs the appellant that it is his legal duty to ensure that his declaration is completed and gives a deadline of 14 days from the date of the letter to do so. It warns that failure to complete the declaration may result in the appellant being fined.

On 26 June 2024 the respondent issued a compliance notice to the appellant under section 35 of the 2008 Act. It advised that the appellant had failed to comply with a requirement to inform the respondent how he had met his automatic enrolment duties. This requirement is known as a declaration of compliance and is required within five months of the duties start date or staging date. The compliance notice states that the duties start date, or staging date is 1 January 2024. The notice states that the appellant must complete a declaration of compliance by 6 August 2024. It warns the appellant that if he does not comply by the deadline, he may be liable to pay a £400 penalty.

The appellant failed to complete a declaration of compliance by 6 August 2024 and on 21 August 2024, the respondent issued a fixed penalty notice (FPN). The notice advised that the penalty of £400 must be paid by 18 September 2024. The FPN warned that if the appellant failed to pay by the deadline, an escalating penalty notice (EPN) may be issued, which would accrue at a daily rate which varies from £50 to £10,000.

The appellant requested a review of the FPN on 28 August 2024. In his grounds for requesting the review, the appellant states that he did not receive the compliance notice. He requested the opportunity to comply and asked that the penalty be withdrawn.

On 4 September 2024 the respondent provided the outcome of the review. The respondent concluded that the compliance notice and FPN were both properly served to the correct address. The respondent decided to vary the FPN deadline date to 1 October 2024. It is stated that this was to give the appellant additional time to complete his automatic enrolment duties but noted that the fixed penalty must still be paid by the revised deadline.

The appellant completed a declaration of compliance on 20 September 2024. He did not pay the £400 penalty.

The appellant lodged an appeal to this tribunal dated 2 October 2024.

On 3 October 2024 the respondent issued a penalty reminder in respect of the unpaid penalty. The reminder states that the appellant must make payment within 7 days to avoid legal action being taken, which will incur additional costs that he would be liable to pay.

On 10 October 2024 the respondent issued a further penalty reminder in the same terms as that issued on 3 October 2024.

On 17 October 2024 the respondent wrote to the appellant to put him on notice of intended legal action in compliance with the Civil Procedure Rules Pre-Action Protocol for Debt Claims.

The Pensions Act 2008 (the 2008 Act) requires employers to enrol job holders in occupational or workplace pension schemes. The respondent is required to ensure employers’ compliance with the 2008 Act and has specified powers under that Act to enable it to do so. Relevant provisions are:

Section 303(6)(a) of the Pensions Act 2004 (the 2004 Act) and regulation 15(4) of the 2010 Regulations create a presumption that notices are received by the employer when addressed to them and sent to their registered office or principal office address. However, that presumption is capable of being rebutted based on contrary evidence.

Section 44 of the 2008 Act allows a person to make a reference to the Tribunal in respect of the issue of a penalty notice or the amount of the penalty payable under the notice. Section 103(3) of the 2004 Act allows the Tribunal to consider any relevant evidence, even where it was not available to the Regulator. Section 103(4) provides that on a reference the Tribunal must determine what (if any) is the appropriate action for the Regulator to take. The role of the Tribunal is to make its own decision on the appropriate action to take, having regard to all the circumstances before it.

Section 43 of the 2008 Act provides such a reference is only permitted where the Regulator has reviewed the notice or if an application for a review has been made and the Regulator has determined not to carry out a review.

The appellant’s grounds of appeal can be summarised as follows:

The appellant asks that the tribunal withdraw the fine imposed.

The respondent’s case can be summarised as follows:

The appellant requested that his appeal be decided without a hearing. The respondent consented to this, and I am satisfied that I can properly determine the issues without a hearing.

There are two issues in this appeal:

I find that the evidence before me shows that all correspondence, including the compliance notice, was sent to the appellant at the same postal address. That address is the same address which the appellant provided in his declaration of compliance and in his notice of appeal to this tribunal.

The appellant has not provided any evidence to suggest that this was not the correct address for service, and he has not provided any evidence to demonstrate that there was any reason why correspondence to that address could not be or was not in fact delivered to him there. I find that the respondent sent three letters to the appellant notifying him of the requirement to complete a declaration of compliance; a warning letter giving him 14 days to comply; and a compliance notice. I find that the respondent sent the letters to the appellant’s correct address for service and that appellant has failed to rebut the presumption that those letters or the compliance notice were in fact served on him.

The appellant received the FPN, because he sought a review on 28 August 2024. The FPN was sent to the same address as the earlier correspondence and the compliance notice. For all these reasons, I find that the appellant received the compliance notice. He has not provided any evidence capable of rebutting the presumption of service.

I find that the appellant chose to ignore the initial correspondence, the warning letter, and the compliance notice and did not take any action until he was issued with the FPN.

Even if I was not satisfied that the appellant had received any of the letters of February 2024, March 2024, May 2024, 10 June 2024, or the compliance notice, I would find that the appellant should nevertheless have been aware of his employer duties. They are legal obligations, and I rely on the decision in Skewer House Taunton Ltd v The Pensions Regulator (PEN/2021/0234). I accept that this decision is not binding on me, but I regard it as persuasive. I agree with Judge Marks that a responsible employer must be aware of their duties, including the requirement to complete a declaration of compliance, even without the initial letters and the warning letter that were sent in this case. Whether or not an employer receives reminders, it is their responsibility to be aware of their statutory duties and to comply with them in a timely manner. I do not accept that the appellant was unaware of his duties, but even if he was, I do not accept that that would amount to a reasonable excuse for his non-compliance.

Aside from his assertion that he was not aware of his duties and that he did not receive correspondence sent to him, the appellant did not advance any other reasons for his non-compliance. I have rejected those assertions for the reasons set out above, and it follows that I find that the appellant has failed to provide a reasonable excuse for his non-compliance.

The reference is dismissed.