Case Reference: PEN/2024/0319
Pensions Regulation
Heard by: Judge in Chambers on the papers
Before
HHJ DAVID DIXON
Between
MISS HAVISHAM’S TEA SHOP LTD
Appellant
and
THE PENSIONS REGULATOR
Respondent
Decision: The reference is dismissed and the matter is remitted to the Regulator. The Penalty Notice is confirmed, without any further directions.
REASONS
By this reference Miss Haversham’s Tea Shop Limited (“the Employer”), challenges a fixed penalty notice (”FPN”) issued by the Regulator on 24th July 2024.
The FPN was issued under s. 40 of the Pensions Act 2008. It required the Employer to pay a penalty of £400 for failing to comply with the requirements of a compliance notice (CN) issued on 28th May 2024. The Compliance Notice was issued under s. 35 of the Pensions Act 2008. It directed the Employer file a redeclaration of compliance by 8th July 2024.
The Employer referred the matter to the Tribunal on 19th August 2024.
The parties and the Tribunal agreed that this matter was suitable for determination on the papers in accordance with rule 32 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, as amended. The Tribunal considered all the evidence and submissions made by both parties.
The Appeal
Under s. 44 of the 2008 Act, a person who has been issued with a FPN may make a reference to the Tribunal provided an application for review has first been made to the Regulator. The role of the Tribunal is to make its own decision on the appropriate action for the Regulator to take, taking into account the evidence before it. The Tribunal may confirm, vary or revoke a FPN, and when it reaches a decision must remit the matter to the Regulator with such directions (if any) required to give effect to its decision.
The Employer’s Notice of Appeal indicates that the company did not receive any reminders and as a result they did not know that they needed to file a redeclaration. The Appellant indicates that the Company was recently purchased and the responsibility to comply wasn’t appreciated. The Appellant indicates that the fine of £400 is excessive and seeks its reversal, these proceedings to be treated as a final warning. The Appellant indicates that compliance was met as soon as it was known it was due.
The Regulator’s Response indicates that the Appellant failed to complete the declaration as required. The Regulator points out that is an employer’s obligation to be aware of its obligations, and whilst the Respondent assists by sending reminders etc, it is not their responsibility to ensure the rules are complied with. The Regulator avers in the circumstances the FPN was properly issued.
The Regulator indicates a Review was completed on 3rd August 2024 as a result of the Appellant’s request. Having considered the circumstances advanced the FPN was confirmed.
The Tribunal considered a bundle of 122 pages.
Submissions
The Appellant seeks to reduce the penalty, if not have it removed, as it will seriously affect the company.
The Regulator responds that there is no excuse for non-compliance, let alone a reasonable one. It is the Employer’s responsibility to meet the legal requirements, and here the Appellant has not provided evidence to reverse the imposition of the Notices.
Conclusion
I find that the Appellant has failed to provide any proper basis for not complying with the CN. The responsibility for completing the declaration rests with the employer and that includes ensuring that all appropriate details are provided. The purpose of requiring employers to declare compliance is to ensure that appropriate steps have been taken. It is the employer’s obligation to meet the regulations not the Regulator to ensure the same. The Regulator simply deals with those that have not.
The Appellant did not file a declaration of compliance when required, the FPN that followed was perfectly proper and I can see no basis for finding to the contrary. The appeal against the penalty itself is without merit. Ignorance of the law is not a defence.
Parliament has set the level of the penalty at a fixed sum of £400 to bring home the consequences of failure to comply. I have no discretion to vary that sum. I have however considered whether the imposition of the penalty would be unfair in the scheme of the breach. It seems to me that the breach was avoidable, and as such the imposition of a penalty was appropriate. I do not believe it disproportionate to apply the penalty here, and therefore find that there is nothing in the points advanced.
In all the circumstances I am driven to the view the appeal has no merit and I remit the matter to the Regulator, upholding the Fixed Penalty Notice.
No further directions are required
Signed: HHJ David Dixon DATE: 27th May 2025