Pizzeria Di Napoli Limited v The Pensions Regulator

This is a reference to the Tribunal by the Appellant in respect of two notices:

The hearing was held by CVP. The Tribunal considered the bundles prepared by the Respondent and the submissions made by both parties.

The Appellant is an employer with a statutory duty to make specified occupational pension schemes. The Respondent identified that some of these contributions were missing and so an unpaid contributions notice (“UCN”) was issued on 29 January 2024 with a deadline of 11 March 2024. It is agreed that the UCN was not paid on time. The Appellant says it did not receive the UCN.

The FPN was issued on 27 March 2024 on the basis that the Appellant had failed to comply with the UCN by 11 March 2024. The FPN was for £400 and had to be paid by 24 April 2024. The FPN set out that the UCN still needed to be complied with and said that if the failure to comply continued an EPN would follow. No request for a review of the FPN was filed and no review was undertaken. The Appellant says the FPN was not received.

The EPN was issued on 26 April 2024 on the basis that the Appellant had failed to comply with the UCN by 11 March 2024. The EPN gave a further deadline for compliance with the UCN of 23 May 2024. The EPN explained that the escalating penalty would accrue at a daily rate of £50 from 24 May 2024. In the notice of appeal the Appellant said it did not receive the EPN.

A reminder letter was sent on 24 May 2024 explaining that the penalty had started to accrue at a daily rate of £50. The Appellant paid the unpaid contributions to NEST on 29 May 2025 and requested a review by the Respondent on the same day. The review concluded on 7 June 2024 and the Respondent upheld the notice.

The Respondent sent a letter before action to the Appellant on 25 June 2024, setting out that £1200 was now due.

The appeal was filed in respect of both notices on 12 June 2024. In the appeal the Appellant’s director stated that the letters of 26 April 2024 and 27 March 2024 had not been received, and that the Appellant only became aware of them on receipt of the current notice. The Appellant wrote that upon realising the oversight immediate corrective action was taken and highlighted the business was a small company which had not failed to comply before.

On 19 August the Respondent confirmed the final amount due under the EPN was £250 and notified the Appellant and Tribunal that it would seek a stay pending another case involving before the Tribunal involving a different Appellant. At a hearing on 4 November 2024 the stay application was formally recorded as withdrawn and Tribunal Judge Brian Kennedy KC set directions for a response to the strike out application.

The Pensions Act 2008 (“the 2008 Act”) requires employers to enrol “job holders” in occupational or workplace pension schemes.

The Pensions Regulator must ensure employers’ compliance with the 2008 Act, so the legislation gives it specified powers to do so, including:

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 on the basis of contrary evidence: Philip Freeman Mobile Welders Ltd v Pensions Regulator [2022] UKUT 62 AAC.

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 director made short submissions. He said that he ran a small business and was not in a position to pay a penalty of £50 a day. He said he was asking the Government to help him on that basis. He said he took immediate action when he did realise the problem. He had tried to get NEST to help him and they said they were going to review the application and come back to him.

Ms Fadero submitted I should strike the FPN appeal out as it was accepted that no review had been requested or undertaken, and so the Tribunal lacked jurisdiction under section 43 of the Pensions Act 2008.

In respect of the EPN Ms Fadero said that there was no basis for displacing the statutory presumption of service in this case. The notices were sent to the Appellant’s registered address and there was no reasonable excuse for failure to comply.

I find that the Tribunal does not have jurisdiction in respect of the FPN appeal. No request for a review of the FPN was made to the Respondent and it did not review the notice of its own accord. Therefore, the Tribunal lacks jurisdiction under section 43 of the 2008 Act and so the Tribunal must strike the proceedings out under section 8(2)(a) of the Procedure Rules.

There is a presumption in favour of receipt of notices that are addressed correctly and sent to the correct business address. In this case there is insufficient evidence to rebut the presumption. When reviewing the notices and the Companies House evidence in the bundles the notices were addressed to the correct business, at the correct address: 32 Victoria Road RM12JH. This is also the address on the notice of appeal.

The Appellant did not argue that the address was in any way deficient. There was no evidence from the Appellant about any difficulties with receiving post at this address. The Appellant’s statement that it did not receive the notice is a bare assertion and not capable of rebutting the presumption alone. I find that the notices were correctly served.

The Appellant did not make any submissions that were capable of amounting to a reasonable excuse. The timeline of them did not quite make sense because the Appellant said he had asked someone from NEST to get back to him but nobody responded to him for three weeks. However, he also says he only received the notice on 29 May 2024 and he filed his appeal on 12 June 2024, less than three weeks later. He also said he had not received the 26 April 2024 notice.

Having regard to all the circumstances of the case I am not satisfied that the Appellant has any reasonable excuse for failing to comply with the notices. The fact that the Appellant complied after the issue of the penalty is not a reasonable excuse, nor is the fact that this the first instance of non-compliance. The Tribunal does not have the power to ‘help’ the Appellant in the way its director asked it to.

The Tribunal must strike out the appeal against the FPN because it lacks jurisdiction.

The Appellant has not established a reasonable excuse for failure to comply with the EPN, which was validly served, and so the appeal against that notice is dismissed.

The Tribunal has sympathy with the Appellant’s financial circumstances as it is a small business. The Respondent has advised the Appellant that it may set up a payment plan and the Appellant should engage with the Respondent about this if any hardship would be caused.