Summerhouse Solutions Limited v The Pensions Regulator

Jurisdiction: The review request was out of time; statutory conditions in section 44 of the Pensions Act 2008 are not met.

The Tribunal cannot reach the merits because jurisdiction is absent. However, even if considered, the Respondent’s evidence of proper service and the statutory scheme would make revocation untenable.

This appeal concerns a Fixed Penalty Notice (“FPN”) of £400 issued under section 40 Pensions2008 (“PA08”) Act for failure to complete a re-declaration of compliance.

The Tribunal is asked to decide:

Jurisdiction: Whether the Tribunal has jurisdiction under section 44 PA08, given the Appellant’s review request was made outside the statutory 28-day period.

Merits: If jurisdiction exists, whether the penalty should be revoked on grounds of non-receipt and fairness.

TPR’s statutory objectives include maximising compliance with automatic enrolment duties. It applies graduated enforcement through a series of notices.

Service is properly effected at the registered office (“proper address”) under the Pensions Act 2004 s.303(6)(a), Interpretation Act 1978 s.7, and of the Occupational and Personal Pension Schemes (Automatic Enrolment) Regulations 2010 Reg.15(4), creating presumptions of posting/issue/receipt unless rebutted

Pensions Act 2008: ss.11, 35, 40, 43, 44.
• Section 40 – Fixed Penalty Notice.
• Section 43 – Review of notices (28-day limit).
• Section 44(2)(a) and (b) – Tribunal jurisdiction conditions.

Employers’ Duties (Registration and Compliance) Regulations 2010:
• Regulation 15(1) – 28-day review period.
• Regulation 15(4) – Presumptions of issue and receipt.

Interpretation Act 1978, section 7 – Postal service presumption (rebuttable).

Pensions Act 2004, section 303 – Service of documents.

Employers’ Duties (Registration and Compliance) Regulations 2010: Reg. 15(1) (28-day review limit), Reg. 15(4) (presumptions of service).

Interpretation Act 1978, s.7: Postal service presumption (rebuttable).

Philip Freeman Mobile Welders Ltd v TPR [2022] UKUT 62 (AAC) – presumptions rebuttable; late review fatal unless receipt disproved.

Mosaic Community Care Ltd v TPR – jurisdiction barred if review out of time.

Ahmads 786 Frist Ltd v TPR – bare denial insufficient to rebut presumption.

J M Kamau v The Pensions Regulator (PEN/2023/0160) – lead case on meaning of ‘receipt’ under PA08.

The Appellant was required to complete its second re-declaration of compliance by 10 November 2023 under the Pensions Act 2008.

The Respondent issued:

The Tribunal previously stayed this appeal pending the Kamau lead case on “receipt”; stay lifted, strike-out refused. Jurisdiction and merits to be determined together.

Jurisdiction: Does the Tribunal have jurisdiction under s.44 PA08 where the review request was made outside the 28-day statutory limit?

Service: Were the CN and FPN properly served and “received” by the Appellant?

Penalty Validity: Should the £400 FPN be revoked given alleged non-receipt and immediate compliance upon awareness?

Fairness: Was the penalty proportionate in all the circumstances?

It is argued they did not receive the Compliance Notice or reminders; first awareness was upon receiving the FPN.

Their review request was late only because of non-receipt; immediate compliance upon awareness.

They argue for fairness and proportionality; seeking revocation of the FPN.

Notices were properly served at the registered office; statutory presumptions apply.

Review request was out of time; Tribunal lacks jurisdiction under section 44 PA08.

Relies on:

Section 7 of the Interpretation Act 1978 provides that where a document is properly addressed, prepaid, and posted, it is deemed served at the time it would ordinarily be delivered, unless the contrary is proved. In this case, the relevant Notices were sent by post to the Appellant’s registered office as recorded at Companies House. There is no evidence of returned mail or postal failure.

Regulation 15(4) of the Occupational and Personal Pension Schemes (Automatic Enrolment) Regulations 2010 provides that a notice served under the Pensions Act is deemed properly served if it is sent to the employer’s “proper address,” which ordinarily means the registered office recorded at Companies House. The onus is on the Appellant to provide the appropriate address for service. There is no material evidence of any error in addressing or any returned correspondence at any material time here, or prior or since the instant time span referred to by the Appellant. Service can therefore be deemed effective under Regulation 15(4), reinforcing the statutory presumption that the notices were received.

The combined effect of Section 7 and Regulation 15(4) is to create a rebuttable presumption of service and receipt. Once the Respondent demonstrates that notices were properly addressed, prepaid, and posted to the registered office, the burden shifts to the Appellant to prove the contrary on the balance of probabilities. Mere assertions of non-receipt or reliance on circumstantial factors, such as alleged multiple addresses, are insufficient. Cogent evidence—such as Royal Mail documentation of delivery failure or returned mail at any material time is required to displace the presumption. No such evidence was provided in this case. The Tribunal is satisfied that the statutory requirements for service were met and that the presumptions of receipt under Section 7 of the Interpretation Act 1978 and Regulation 15(4) of the 2010 Regulations have not been rebutted. The notices were prima facie lawfully served and are deemed received, and the Appellant remains liable for the penalties imposed.

On the balance of probabilities, the Respondent has established proper service:

Notices were addressed to the registered office and dispatched via automated systems.

No evidence of postal failure or returned mail.

Appellant’s assertion of non-receipt is unsupported by material corroborative evidence (e.g., mail logs, Royal Mail records, internal handling anomalies or any previous or subsequent misplacement or explained loss).

It is I suggest fanciful, to suggest there is any or adequate material evidence to support the assertion that proper service was not affected or that actual awareness existed within the material timescale.

Section 44 PA08 sets two gateways for jurisdiction:

44(2)(a): The Regulator has completed a review under section 43.

44(2)(b): The person has applied for a review, and the Regulator has determined not to carry out such a review.

The Appellant argues that the refusal letter of 13 March 2024 satisfies 44(2)(b). However, Philip Freeman Mobile Welders Ltd v TPR [2022] UKUT 62 (AAC) clarifies that 44(2)(b) only applies where a valid review application was made within the statutory 28-day period. An application made out of time does not engage section 44(2)(b). A refusal for lateness is not a “determination not to carry out such a review” within the meaning of the Act; it is simply a refusal in that, and because, the statutory right has expired. The Tribunal has no discretion to extend time.

Section 44(2)(b) PA08 provides: “The person has made an application for the review of the notice under section 43, and the Regulator has determined not to carry out such a review.” This provision presupposes a valid application within the statutory time limit; it does not confer jurisdiction where the application was out of time.

Although jurisdiction fails, the Tribunal notes the Appellant’s argument on fairness and proportionality. The statutory scheme under PA08 imposes strict time limits to ensure regulatory certainty. While the Appellant ultimately acted promptly upon “their awareness” on receipt of the FPN, Parliament has provided no discretion for the Tribunal to waive penalties or extend time where jurisdiction is absent. Fairness considerations cannot override the statutory bar in section 44 PA08. This position is reinforced by “Rossendale Sports Club and Skewer House Taunton Ltd”, which case confirms that late compliance does not negate liability. Further this Tribunal has no discretion on the sum of the penalty determined by statute.

Both issues before the Tribunal are resolved by these findings:

Jurisdiction: The review request was out of time; statutory conditions in section 44 PA08 are not met.

Merits: The Tribunal cannot reach the merits because jurisdiction is absent. Even if considered, I find the Respondent’s evidence of proper service and the statutory scheme would make revocation untenable.

The Tribunal finds:

The Notices were properly served.

The review request was out of time.

The Tribunal has no jurisdiction to consider the merits.

Both issues before the Tribunal are therefore resolved by these findings:

The Appeal is struck out under Rule 8(2)(a) of the Tribunal Procedure Rules. No order as to costs.