Karina M Barretto v The Pensions Regulator

Section 1 of the Act establishes TPR as a body corporate. The objectives of TPR are, broadly speaking, to protect the benefits under occupational and personal pensions schemes, to maximise compliance with duties under the Act and to promote and improve the understanding of the good administration of “work-based pension schemes”. An employer’s duties include the automatic enrolment of employees by employers in a work-placed pension scheme, per section 3 of the 2008 Act.

The Act sets out, in Part 1, Chapter 1, a range of duties that an employer is subject to in relation to AE. Under Section 11, an employer’s duty is that they must give the prescribed information (known as the Declaration of Compliance) to TPR. The information is set out in regulations, the purpose is that he Declaration of Compliance enables the employer to demonstrate how they have met their duty to provide the information which statute requires them to provide to TPR. There is an initial deadline of 5 months from when the AE legislation applies to the employer; re-declaration is required every 3 years.

TPR may issue three types of notice under the Act. The two which are relevant here are a CN which is issued under section 35 of the Act and an FPN which is issued under Section 40 of the Act if an employer fails to comply with a CN; the amount of the FPN is £400.

The Pensions Regulator may review an FPN and, whilst any review is on-going, enforcement of that Notice is suspended.

The Tribunal’s jurisdiction is derived from Section 44 of the Act, which provides:

The Tribunal when determining the question of delivery and/or receipt of an FPN should ask and answer two questions:

The Tribunal’s powers are wide, the Act provides, at section 103:

This Tribunal makes its own decision based on the evidence provided to it.

Both parties consented to consideration without a hearing; pursuant to rule 32(1)(b) of the GRC Rules, I am satisfied that I can properly determine the issues without a hearing.

TPR provided a Certificate of Compliance dated 27 June 2025 stating that the case was ready for a decision. The Appellant appears not to have provided a Certificate of Compliance; it did not appear to me to be necessary to postpone making a decision whilst such was provided as the Tribunal appeared to have all the information it required to make a fair and just decision on the merits of the appeal.

I considered the bundle, comprising of 133 PDF pages and the Certificate of Compliance provided by TPR.

The Appellant was first subject to AE provisions on 1 May 2018; she needed to complete re-declaration in 2021 and then in 2024 (the second 3-year cycle). The Declaration of Compliance was due by 30 September 2024.

On 24 October 2024, TPR formed the view that the Appellant had not, on behalf of her company, completed and submitted a Declaration of Compliance with AE duties. They issued a CN.

On 19 December 2024, The Pensions Regulator issued an FPN requiring Mrs Karina Magdalena Barreto to pay £400. The reason for the issue is stated as:

The Appellant sought a review of the decision to issue the FPN; on review, The Pensions Regulator upheld their decision to issue an FPN.

By GRC1, dated 21 January 2025, the Appellant lodged a reference (now referred to as an “appeal”) against the FPN. Her grounds of appeal are:

The Pensions Regulator opposes the appeal, their grounds are:

In considering the first grounds of appeal, namely that the CN was not received; I make no findings of fact as it does not answer the underlying problem. Whilst the FPN is for failing to comply with the CN, the actual issue is that, by 24 October 2024 (some 24 days after she should have done), the Appellant had not (whether herself or through her accountant) make the necessary re-declaration. She had been contacted on several occasions by TPR, who had written by email and by post; she had been given plenty of reminders that she needed to do this and, whilst the CN would be a crystallizing event as it is only after issue of the CN that an FPN would be issued; the Appellant had already shown that she was not complying with her obligations as, despite the reminders, she did not make Declaration of Compliance.

I now consider the second ground of appeal that if she had received the CN she would have completed the Declaration of Compliance. She is unable to hide behind a claim of ignorance of the law. In any, event TPR sought to contact her by email using the information they had for her (a bt-connect email address). That is made clear in the Review Decision and, whilst I note that there is a gmail address in the GRC1, the Grounds of Appeal do not make any comment on the use, by TPR, of the bt-connect address. In any event, TPR’s review decision states that the same address that they wrote to was used when the Appellant did complete (directly or by instructing another to do so) the Declaration of Compliance for 2024. The Review Decision also states that other letters were sent by post to remind the Appellant of the need to complete a Declaration of Compliance.

I now take the third ground of appeal – the amount causing the closure of her business. There is no evidence provided to support that argument; even if it were true, that does not amount to a reasonable excuse for failing to re-declare, which led to the CN and led to the FPN. I accept that, particular for a small business, a penalty of £400 may be very difficult; Parliament decided to enact a fixed system and the Tribunal has now power to vary the level of the FPN.

For the reasons stated, I find that the Appellant has not demonstrated a reasonable excuse for its failure to meet the requirements of making a Declaration of Compliance in 2024 and accordingly, I dismiss the reference and remit the matter to TPR. No further direction is required.