Committed2Care Ltd v The Pensions Regulator

The Appellant lodged an appeal on 19 March 2025 indicating they wished to challenge a fixed penalty notice and escalating penalty notice sent by the Pensions Regulator (the “Regulator”).

The Appellant provided a copy of a letter from the Regulator dated 24 February 2025 which indicated that their application for a review was sent outside the 28 day deadline, and the Regulator did not consider it appropriate to conduct a review on their own initiative. The letter stated, “As your request was received beyond the 28 day time limit, and no review has been conducted, you should be aware that the General Regulatory Chamber of the First Tier Tribunal has consistently confirmed that it has no power to hear an appeal against a penalty in such circumstances. You may wish to contact the Tribunal Service to check this on 0300 123 4504. Please also note that the Tribunal does not deal with complaints about our decision not to undertake a review.”

On 2 May 2025, Registrar Bamawo invited the Appellant to make representations as to why this referral should not be struck out pursuant to rule 8(2)(a) for want of jurisdiction by no later than 16 May 2024. The directions explained, “These proceedings are only within jurisdiction if, on the date they were lodged there had been an in-time request for a review under section 43(1)(a) of the Pensions Act 2008 or a Pensions Regulator’s review under section 43(1)(b).”

A director of the Appellant sent representations by email on 19 May 2025. He explains that they had sent information to the Regulator about his wife’s health and memory issues, which indicate this was not a deliberate act, but this was not referred to by the Regulator in their letter. He says, “From information provided it is hoped that due to extenuating circumstance outside of our control at the time you will review and agree with our argument that this was not a deliberate act not to undertake re-enrolment, but this was missed due to medical issues that continue”.

Under Rule 8(2)(a) 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 does not have jurisdiction in relation to the proceedings or that part of them.

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 to review under section 43(1)(a) is 28 days from the date the notice is issued (regulation 15 of theEmployers' Duties (Registration and Compliance) Regulations 2010/5).

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).

This means that the Tribunal’s powers to consider a reference are limited. If the Regulator has not completed a review, a person needs to have made an application for a review under section 43(1)(a). This means an application within the 28 day time limit. If an application has been made outside the time limit, and the Regulator has decided not to conduct a review, the Tribunal does not have jurisdiction to consider a reference.

This is not a situation where the Appellant is saying they did not receive the penalty notices and so they may not have been properly issued. I have noted the information from the Appellant. I have sympathy for their position, and why they may not have responded to the notices and asked for a review within time. However, the rules mean that the Tribunal is not able to accept a reference in these circumstances. The Tribunal does not have discretion to accept a reference where the Regulator has decided not to conduct a review and the request for a review was submitted out of time. As stated in the Regulator’s letter, the Tribunal does not deal with complaints about the Regulator’s decision not to conduct a review.

I therefore find that, in the circumstances, the Tribunal does not have jurisdiction in these proceedings. The proceedings are struck out.