Bangor Abbey Preschool Ltd v The Pensions Regulator

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. I have considered the Bundle comprising of 129 PDF pages, case management directions dated 04 July 2025 and an internal GRC document titled “Legal Review Outcome”.

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 the 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 (on request or by its own initiative) and, whilst any review is on-going, enforcement of that Notice is suspended.

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. The Tribunal will consider whether there is a reasonable (or good) excuse for failing to comply with the requirements of the CN as such excuse enables the Tribunal to quash the FPN.

The Appellant’s grounds of appeal are:

TPR opposes the appeal. I note there is a typo in paragraph 15 as the Appellant’s staging date cannot have been in 2028, but the chronology above states the real staging date of 1 February 2018. TPR’s grounds for opposing are:

The Appellant’s grounds of appeal do not, when read as a whole, make sense. They state that they were making a re-declaration of compliance in June 2024 but also state they were unaware of what they needed to do. These two positions cannot both be true; either they knew of the need to comply and so attempted to do so in June 2024 or they did not know).

The ground of appeal which states that they tried to re-declare but it did not complete on TPR’s side is unsupported by real evidence other than assertion. What seems clear is that they did not receive anything which said “you have complied”; therefore, the Appellant should at least have contacted TPR helpline to ask whether the re-declaration had been completed.

At page 89 of the bundle is found a review request by the Appellant which assets that they were not aware of the reason for the CN. They would only have been able to raise a review request on the CN for this non-compliance if they had the CN reference number. That CN is found in the bundle (see page 72 to 74); it clearly sets out what the problem was and what was needed to resolve the problem. Their closure to mid-September did not prevent them from receiving the CN about non-re-declaration with sufficient time to comply and avoid a penalty. The date for compliance was 21 October 2024, well after they would have received all their post.

I accept that, particular for a small business or a not-for-profit 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. Parliament also decided not to exclude non-profits and/or schools from this scheme.

For the reasons stated, I find that the Appellant has not demonstrated a good excuse for its failure to meet the requirements of re-declaration and accordingly, I dismiss the reference and remit the matter to TPR. No further direction is required.